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Global Press Freedom Windowsill in 2019: Gasping for Nonconformity and Sustainable Media Pluralism

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Journalists and media actors perform a crucial role in modern societies, reporting news and disseminating and sharing information with the people that exposes the misdeeds of state agencies, bodies and make state institutions accountable and transparent. They contribute by creating more fair, peaceful, and inclusive societies. The press freedom and free media is the new independent organ of a democratic political set-up what I call ‘constitutional state’ beyond the conventional three-fold separation of power doctrine propounded by the Baron de Montesquieu in his work “The Spirit of the Laws” (1748) which states that “There can be no liberty where the legislative and executive powers are united in the same person or body of magistrates … [or] if the power of judging be not separated from the legislative and executive powers(sic).” Therefore, global press freedom and free media is an inalienable part of transformative constitutionalism that survives on the right of democracy to have the diversity of opinion, the right to independent journalism, and the right to think like a journalist within the constitutional mandate. However, around the world, journalists are confronting unprecedented fear and violence in their pursuit of truth and fairness, while media freedom has been gasping for liberal space.

The worldwide killing of journalists in 2019 has recorded a noteworthy downswing; however, the global press freedom crisis got aggravated to the new heights owing to the governments preferring to punish independent journalists everywhere. State-patronized-led (SLP) violence against media and journalists in the form of stigmatic campaigns, subjective news hounding, and legal persecution has been guzzling global press freedom. SLP violence has divested the freedom of the press of its core elements such as impartiality, independence, fairness, nonconformity, and self-determination. The International Press Institute (IPI) has recorded the coverage of global press freedom in 2019 that shows an incremental trend in SLP violence such as state enacting new draconian laws, state abusing the existing laws to curb media freedom, state threatening the independent journalists for harassment and incarceration and state creating new pliant and docile media indulging in peddling state-designed rhetoric and populist perception across the world.

IPI Executive Director Barbara Triofni opined that “2019 has witnessed a clear downswing in the number of journalists eliminated to the lowest level in 20 years, even as impunity remains a major challenge. We certainly welcome this development. However, we fear it may be a direct consequence of increased authoritarian tendencies in many countries, where alternative means of silencing the press, such as twisting the law to harass and jail critical journalists while smearing independent media, have been adopted to shield political leaders from scrutiny and criticism.”Further, 2019 has witnessed police raids and arrests of media persons and journalists worldwide while undermining the international media law.The 2019 World Press Freedom Index (WPFI) categorized the media climate in more than three-fourths of the 180 nation-states and territories researched as “problematic,” “difficult” or “very serious” and only 8% have a media climate regarded “good” (sic).

Suppression of Free Media Worldwide

An IPI Executive Board member, along with the founder of the online news outlet Rappler Maria Ressa was arrested twice in 2019 on cyber libel and other charges in February and March, respectively. The government of the Philippines has filed several cases against Maria and her media outlet Rappler due to its criticism of President Rodrigo Duterte and his ministerial colleagues. In Egypt, the government intensified its intimidation exercises like swooping news organizations, vandalizing free media houses, and arresting independent scribes. In November 2019, Egyptian security agencies raided the offices of the most important online news platform in Egypt known as Mada Masr that has been conferred upon with IPI-International Media Support (IMS) award for its courageous, responsible and investigative journalism. In total, more than 60 journalists have been rotting in Egyptian jails in extremely inhospitable conditions. Al Jazeera’s Mahmoud Hussein has been in detention for more than three years, and Ismail Alexandrani has served almost four years in prison.

In Turkey, about 115 journalists have been imprisoned for long as reported by the IPI-International Press Freedom Mission that recorded “no improvement” in press freedom in Turkey and pointed out the political subjugation of Turkish judiciary failing in protecting the rights of journalists. New waves of repressive measures such as re-arresting of released journalists who castigated the Turkish military invasion of Syria. In Australia, a police raid on the homes of journalists working with the Australian Broadcasting Corporation (ABC) was conducted due to ABC’s reporting of unlawful killings of Afghans by the Australian Special Forces in Afghanistan in 2017 that attracted international criticism and accentuated the inadequate safety measures for the free press in Australia.

In South Asia, with authoritarian state propaganda, disinformation, undeclared censorship, cyber-harassment, intimidation, and physical violence is the new normal. South Asiahas theworst record on the free press as reported by the Reporters Without Borders(RSF),and it is a region that is infested with all the problems that have overwhelmed press and independent journalism. The WPFI collected by RSF establishes that hatred to journalists has degenerated into violence and accelerating the threshold of fear and torture. The number of safe countries for journalists has been declining as SLP violence continues to strangulate the free media. As per WPFI rankings, the number of murdered journalists was extremely high in Afghanistan (121st), India (142nd), Maldives (98th),Pakistan(152nd),and Sri Lanka (156th).Consequently, the maneuvering of social networks in Myanmar that pandered to anti-Rohingya hate messages and imposition of the 7-year jail imprisonment of two Reuter’s journalists who tried to investigate the Rohingya genocide was a new normal.

There are many other dimensions to the suppression of free media like the Internet that is frequently subjected to shut-down and deliberate slowdown. In today’s world of technology, the Internet controls the free flow of information, freedom of the press, and free speech. In South Asia, the highest number of Internet shutdowns globally has been recorded, and India has earned the dubious distinction for the same. The Internet shutdowns are “any intentional disruption of the broadband or mobile Internet or Internet-based mobile apps, by an order of the authorities or threat of non-state party, to control communication or online content or slowing down the access to the general public (sic).” In many cases, the government gives the justification for the Internet shutdown is to “maintain law and order.”However, the majority of the shutdowns are either pre-emptive or reactive measures in the wake of mass or potential violent public protests.

Globally, national governments have been promulgating new laws in Nigeria, Cambodia, and Singapore on the pretext of national security, public order, and national integrity. The increasing influence of China is responsible for censorship in Singapore that ranked 151stand Cambodia143rd. In Poland, leading online media outlet, Gazeta Wyborcza has been beleaguered with libel cases filed by the Polish government officials while Bulgaria launched a criminal investigation against Bulgarian journalist Atanas Tchobanov and Assen Yordanov for their investigative journalism. In Africa, more than 20 journalists’detention in Uganda on 04 November 2019 and in Tanzania, a freelance journalist Erick Kabendera who was conferred with David Astor Award in 2009,has been arrested initially to investigate his citizenship credentials but subsequently, he has been booked under money laundering charges. In such a hostile atmosphere, the political ecosystem can fundamentally and adversely transform the environment for independent journalists and free press.

Delegitimization of Free Press Personnel

Primarily, authoritarian regimes are the first category of institutional structures that denigrates press freedom for their ulterior objectives, which cannot be achieved by constitutionally-driven channels. These state structures are manned by the politicians who have radically transformed the free social media to denigrate and hound free media platforms and bully independent journalists for their critical journalism. US President Donald Trump denigrating press freedom continuously and attributing journalists as enemies of the people and many like-minded politicians across the world are also following him. The framework of press freedom in the US has been tattered and debilitated by the political pillory of independent scribes in 2019. Media freedom has been confronting the criminalization of journalists covering protests, escalation in harassment, and denial of access to government-held information.

In Pakistan, editor of an English newspaper Dawn was threatened with death by the politicians associated with the incumbent government on social media due to his publishing a report on London stabbing attacks on 29 November 2019.In Brazil, Glenn Greenwald—co-founder of an online news outlet, The Intercept—faced a smear campaign of threats of violence, prosecution and deportation emanating from patronized politicians and blue-eyed boys of President Jair Bolsonaro after he published damaging revelations about the unethical behaviour and transgressions of power exercised by a former judge Sérgio Moro and now justice minister. In Hungary, since 2010, the government has been tempering systematically with media freedom and pluralism by twisting the media market and alienating journalistic community to achieve the maximum degree of media control unprecedented in an EU member state as highlighted in a report compiled by the IPI-led joint Press Freedom Mission in November 2019. The report has underscored a systematic delegitimization of free press personnel by calling them as political activists, foreign agents, and traitors.

Downswings in Violence against Press Personnel

The persecution of free press on legal grounds increased in 2019, but there is a significant decline in the killings of a journalist if compared to preceding years. Forty-seven journalists have been killed in 2019 as compared to 82 and 79 killings of journalists in 2017 and 2018, respectively. Out of 47 deaths in 2019, there were 30 targeted killings due to investigative journalism regarding crimes and corruption involving criminal syndicates. However, as many as 19 journalists were victims of targeted killings in the Americas consisting of 9 alone from Mexico. In Africa, one journalist got killed in 2019, and in Asia, 6 journalists were killed in targeted attacks. Reduction in violence and murder of journalists is a positive development but impunity and culpability for past killings of journalists remain pandemic and a multiplying challenge.

Mexico turned out to be an extremely hostile country for the journalists and flopped in its responsibility to bring a single culprit to justice out of more than 100 murders of journalists since 2006, as highlighted in a report compiled and released by an international mission on 06 November 2019.This international mission was carried out by the representatives of 17 international press freedom organizations in response to Mexico’s crisis of journalist safety and impunity. However, Europe was the only region that has recorded a few positive developments in stopping impunity. In Slovakia, the murder of an investigative journalist Ján Kuciak and his fiancée Martina Kušnírová hogged the global limelight in 2018 and prosecutors in October 2019 initiated the charges against the accused Marian Kocner and three of his accomplices. In November 2019, the government of Malta charged a local business tycoon and high ranking officials of the Maltese government with the murder of an investigative journalist Daphne Caruana Galiziawho exposed the Panama papers’ corruption.

The Constitutional Court of Turkey (CCT) has adjudicated and ruled on the libel suit instituted by Ex-Ankara Metropolitan Mayor Melih Gökçek against journalist Hayko Bağdat and held that the penalization of journalist violated his right to freedom of expression protected under Article 26 of the Constitution of Turkey. The CCT opined that “it should not be forgotten that not only the protection of the essence of thought and knowledge but also the way of presenting the thought and knowledge are important in freedom of expression. Even though they are disturbing, the penalization of criticisms against politicians can serve as a deterrent factor and cause the different voices in public to be silenced out of fear of being penalized. It is an obstacle to the sustainability of a pluralist society (sic).”Thus, the methods used by many national governments around the world deviate from the core elements of the global rule of law and equality governance.

The Ecosystem of Sustainable Media Pluralism

The global press has been gasping for nonconformity and sustainable media pluralism worldwide. Free press and independent journalism are an inalienable element of the democratic framework of good governance. Omnipresent erosion of nonconformity and ubiquitous anti-media rhetoric are a deathblow to the ecosystem of sustainable media pluralism. The right to information of ordinary people emanates from the diversity of information; otherwise, it would be at the guillotine; however, in recent years, it has greatly empowered the journalists everywhere. It is important to address deliberate distortions in the name of the competition in the media market by expanding the gamut of fiscal support to independent investigative journalism. Sustainable democracy cannot be imagined without sustainable media freedom that requires a free media environment across the world. The concentration of media ownership has been perpetrated by the governments contrary to fair market competition that has badly affected the free press and media pluralism. National governments must review the availability and exploitation of state-owned resources and stop the practice of settling the multi-dimensional score with the independent media houses and rewarding pro-establishment media outlets.

It is expected that national governments ensure international norms of accountability, independence, and transparency while dealing with public broadcasting services. The administrative harassment and marginalization of the free press and independent media by the regulatory bodies of the state must be stopped. The protection of the independence of journalism, the safety of journalists, and other freelance media actors from discrimination in accessing the information and press meets. The inviolability of journalistic credentials and the ability of journalists to function and perform their role as an ombudsman in the reporting of Parliamentary working must be respected and appreciated. Any attack on independent journalists—online or offline—must be properly probed. Political intervention and influence in the media market have undermined the global free press that has exacerbated the ecosystem of sustainable media pluralism worldwide. The global community must profoundly cogitate upon the unprecedented sordid state of media freedom situation around the world and respond appropriately by taking measures in line with the principles and purposes of the UN Charter.

Where from here?

It is incumbent upon the national governments to emplace a robust normative framework on the safety of journalists. There are as many as twelve Resolutions and Decisions on the Safety of journalists adopted by the United Nations bodies such as the UN General Assembly, UN Security Council, UN Human Rights Council, and UNESCO since 2012. The safety of journalists under SDG 16.10.1 has been established as a measure to be accomplished as a part of the 2030 Agenda for Sustainable Development Goals, particularly public access to information and protection of fundamental freedoms. In 2013, UN General Assembly declared November 02 as “International Day to End Impunity for Crimes against Journalists,” and UNESCO has been leading all commemorations that have enhanced the understanding of the safety of journalists and impunity challenges. For achieving global free press and sustainable media pluralism, the challenges of media market distortions, discrimination in access to information, opaque implementation of media regulations, authoritarian public media broadcasting and de-legitimization of journalists must be addressed by revisiting the role of international media law. 

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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