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International Law

Responsibility to Protect and Political Will

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The very reason why responsibility to protect fails drastically in many circumstances is that the international community is plagued by the complete lack of political will. Alex Bellamy finds that “the international community’s actual record of preventing and halting the mass killing of civilians is staggeringly poor”.When the practical battle of sovereignty versus humanitarian intervention started the former UNSG Kofi Annan proposed a “forged unity” that resulted the norm of humanitarian intervention. (Bellamy, June 2006 )

The indeterminacy (sovereignty v intervention) somehow makes the responsibility to protect to fail in both practical and institutional terms. However, there is still hope that with the “compliance pull” the R2P can be newly emerged as it proved to be better solution than humanitarian intervention. It is worthy to note what Eric Heinze speaks on humanitarian intervention and he says “the transboundary use of military force for the purpose of protecting people whose government is egregiously abusing them, either directly, or by aiding and permitting extreme mistreatment”. (Heinze, 1 January 2010). Gareth Evan comments on Humanitarian Intervention as follows: “mistake of going to war when we should not, but also what can sometimes be the even bigger mistake of not going to war to protect our fellow human beings from catastrophe when we should”. (Sahnoun, November – December 2002 )

There are four core claims on the legality of the humanitarian intervention:

The plain meaning and language of UN Charter

UN Charter is being an “organic document” not answering the legal arguments

Viewing customary law and other normative practices as the legal basis of a state’s behavior

There is codified treaty law that define the rules for state behavior

Along with the four claims above, the question of morality is another issue. For example, the humanitarian intervention in Haiti would have been still justified without the OAS (Organization of the American States) sanctioning and the NATO’s intervention in Kosovo without Security Council mandate is “illegal but legitimate” but sanctioned for its “compelling moral purpose”.

When talking about Responsibility to Protect and it’s predecessor norm humanitarian intervention it is vital to remember that both are derived from Just War tradition “Quod est necessarium est licitum – ‘that which is necessary is legal’ in other words as quoted by the Prime Minister of East Timor “Some times war saves people”.  (Schrijver, 2000)

Sovereignty has a long history of colonial war and revolutions, and it is still promised with “self-determination” and “future free from outside interference” which is considered to be as just an “emotional attachment”. At this juncture it is worthy to note Gerath Evan’s view on sovereignty “Sovereignty thus hard won, and proudly enjoyed, is sovereignty not easily relinquished or compromised”

The following responses on NATO’s intervention in Kosovo would reflect the nation states’ take on “sovereignty”

Algerian President, and then President of the Organization of African Unity (OAU), Abdelaziz Bouteflika, in addressing the UN General Assembly in 1999, advocated the value of sovereignty as “our final defense against the rules of an unjust world”

Former Secretary of State and realist scholar, Henry Kissinger lambasted British Prime Minister Tony Blair after the intervention in Kosovo for the “abrupt abandonment of the concept of national sovereignty”

Nelsen Mandela in 2000, saw military action in Kosovo as: “such disregard for international conventions was more dangerous to world peace than anything that was currently happening in Africa

The basic problem is that the individual is protected by intervention whereas the state in protected by territorial sovereignty and non-intervention.

“the international community’s actual record of preventing and halting the mass killing of civilians is staggeringly poor”

The theoretical vacuum between non-intervention and moral responsibility to protect humanity at risk engulfs majority global crisis and thus Responsibility to Protect became the solution.

R2P can be metaphorically compared to a bridge that connects indeterminacy of intervention vs sovereignty. (Stahn, 2007 )

R2P and practical successes

In Kenya after the presidential elections in 2007, the violence outbroke with the killing of 1000 people and displacement of 250,000. Frances Deng, through the Special Advisor on the Prevention of Genocide (OSAPG) used R2P to charge political leaders who are inciting violence. As a result, the inflammatory speech and hate comments were banned and it reduced considerable amount of human sufferings.

Libya is another watermark example for R2P is where Kadaffi’s regime was thrown out not only by his death but also by successful international mobilization and application of humanitarian principles. At this moment it is worthy to note Jack Straw, as British Foreign Minister said: “if this new responsibility had been in place a decade ago, thousands in Srebrenica and Rwanda would have been saved”(Thakur, 2011)

R2P – Failure Stories

When declaring Responsibility to Protect through a UNSC resolution, it is extremely difficult to gain the consent or the support of all the nation states in unity especially the P5. In Resolution 1973 on Libya the most important international actors like India, Russia, China and Brazil chose to abstain rather than endorse the Resolution whereas the BRICS countries expressly stated their distrust in Responsibility to Protect.

The case of Darfur

When Darfur was in the need of humanitarian assistance, The R2P was explicitly declared by British Government, and the UNSC resolution condemning Khartoum. It was later realized by the international community that the key players of the international politics were unwilling to support humanitarian operations through providing necessary military troops. R2P does not expect consent from the targeted states and UNSC Resolution 1706 called “the consent for national unity” from international governments which was ended up as failure. Lee Feinstein articulates “If Darfur is the first ‘test case’ of the responsibility to protect there is no point in denying that the world has failed the entry exam”.

Although the Kenya sets an example of a successful R2P application, it was criticized that R2P used more as a “diplomatic tool than a catalyst for action”. Kenya’s act of dragging R2P into the territory without a clear-cut evidence of ethnic cleansing and only 700-800 confirmed deaths also questioned the threshold of the doctrine of responsibility of protect.

R2P failed to protect about 150,000 of people who were at a huge humanitarian risk in Sri Lanka at the final phases of war when the Government of Sri Lanka turned its defensive humanitarian operation into offensive. The intervention of international community was widely expected at the final moments of war and Crawshaw from Human Rights watch criticized it as points “there was a failure to address the Sri Lankan issue and that I think can be said to be indicative of where the gap between the words and reality is”.

In Mali, despite of three explicit UN Resolutions and the support of ECOWAS, the unilateral intervention of France was needed to proceed international assistance. As per the UN Commission on Inquiry, the government of Guinea committed crimes against humanity, yet the language of R2P was nowhere to be seen.  In the case of DRC (Democratic Republic of Congo), the UNSC failed to authorize intervention under the guise of Responsibility to Protect. Although troop expansions, mandate strengthening and greater assistance were given in DRC, the R2P had no practical impact.

The issue of Israel’s assault on Gaza was raised at the UNGA in 2009 and the citizens of Gaza were in need of R2P Solution. The failure to intervene reflected of a “selective application” and “double standards”.

Apart from the failed intervening moments on humanitarian grounds, the misappropriation created more confusions which leads back to the indeterminacy of intervention versus sovereignty. French intervention Myanmar upon the post-Nargis Cyclone rebuilding, Russia’s misinterpretation of R2P language to annex South Ossetia in which Russian Foreign Minister Sergei Lavrov stated that the “proximity of the conflict makes it absolutely unavoidable to us to exercise responsibility to protect”, and Tony Blair’s use of R2P to invade Iraqin 2003 are some of the examples where the prism of R2P was misused. These incidents not only questioned the threshold of the doctrine but also invalidated the manifestation of the four mass crimes covered by the R2P.

Political Will

The “age of strict national sovereignty” started to change slowly during 1990’s after some acts such as UN Resolution to authorize no fly-zone over Iraqi-Kurdistan under the justification of “right to intervene” and legitimatization of entering into the crisis zones such as Rwanda and Darfur under Genocide Convention. The establishment of ICTY and ICTR and evolving realm of human rights and human security always reconstructed the practices of sovereignty time to time. The slogans such as “its people’s sovereignty rather than sovereign’s sovereignty”, “sovereignty is also a responsibility” have started to articulate the international law. Thus, in the present context sovereignty is not a challenging ground to R2P as it is expected to be. The foremost and challenging barrier to responsibility to protect is the lack of moral and ethical will.  This is explained by Alex Bellamy, the reason that humanitarian intervention was not successful pre-R2P was “the basic political fact that no state wanted to pay the price associated with saving strangers”. With absence of strict sovereignty concept, the scholars of international law acknowledged the need of a strong “political will” to back it up as Lee Feinstein observed in the World Summit. Aidan Hehir explains that “political will is the variable upon which the entire utility of R2P is now predicated”. The General Assembly 2009 recognized the need of “political will at the right time” and the co-chair of the ICISS report, Gerath Evans noted that “without the exercise of political will, by the relevant policy makers at the relevant time, almost none of the things for which this book has argues will actually happen”.

The failure of the doctrine during Rwandan Genocide was, according to Thakur, due to lack of “civic courage and collective consciences, UN inquiry pointed out “lack of resources and political commitment”, andICISS finally concluded as “a failure of international will”.  Taking East Timor scenario into consideration, a senior diplomat and scholar in Jakarta described the unwillingness to intervene as “Indonesia matters and East Timor doesn’t and Aida Hehir commented “it was clear that no intervention would take place without Indonesia’s consent”. The Srebrenica massacre is another example where the Report of the Secretary-General 1999 commented that “the cardinal lesson of Srebrenica is that a deliberate and systematic attempt to terrorize, expel or murder an entire people must be met decisively….with the (requisite) political will”. The Democratic Republic of Congo, Somalia, Sri Lanka and North Korea are some of other examples where the international community lost consciences to intervene.  Bernanrd- Henri Levy , an author in the Public Intellectuality commented of the fact that French Government was successful in the gist of R2P in Darfur, yet failed in other scenarios due to a single issue of “ the political will of one man, the President of the French Republic, Nicolas Sarkozy” also raised a question “If Libya, then why not Bahrain, Yemen, or Syria?”.  Leon Panetta, the Defense Secretary of United States viewed the failure of American Administration to intervene into Syria as “we learned a lot about how to confront al-Qaeda and its affiliated as a result of operation in Pakistan and Afghanistan…. we know how to do this”.

Responsibility to Protect: Weaknesses and Recommendations 

Would R2P work as a regional protection?

Responsibility to protect fails mostly in the initial stage of its implementation by two reasons: 1. The United Nations Security Council fails to get the consent of the Permanent Members, 2. It may fail in the  national level as the governments use the concept to achieve it’s national interests which would further lead to a development of a “neo-colonial state” that uses power to oppress citizens. (O’Donnell, 2014)Since R2P was formed on the basis of United Nations values and United Nations Charter authorizes the validity of regional arrangements in resolving conflicts, the new suggestion merged of implementing Responsibility to Protect as a regional arrangement. While having R2P implemented by Regional Organizations, the implementation would limit itself within its purposes and the there would be less infringement of state sovereignty. (Shen, 12th January 2000)

All the regional arrangements are agreed upon a certain Charter (a treaty or an agreement) that binds the member states and the rights to intervene or the theory of responsibility to protect can be included in such binding provision. In those circumstances, the ROs can intervene with the help of member states using either permanent troops and troops called upon member states. While using Responsibility to Protect through regional arrangements would stop the intervention of powerful states with geopolitical interests, spill over effect on developing and third world countries, serve with the bona fide intervention of protecting civilians from human rights violations. (Naomi Kikoler, September 2009 )Regional Organizations maintain strong economic, cultural, historic and political ties with the violating state and member states which would create a quicker response and most of the armed conflicts rise around regional level more than national and international level. It is also vital to note that incorporating R2P with Regional Organizations is just a logical choice that needs legal attention to be executed since some of the regional organizations are controlled by the hegemonic powerful states within it especially when the RO is a continent spanning (Example: African Union). (Rosenperg, 2009 )

UN Charter’s Article 2 strict prohibition against use of force can be made favorable to responsibility to protect applying two arguments: a sovereign state can limit its sovereignty by entering into multi-lateral treaties and the interpretation of the language of the UN Charter itself. When it comes to the sovereignty issue foremost requirement to overcome the national sovereignty problem is that the R2P must be squared with UN Charter’s recognition for the “sovereign equality of all its Members” and UN Charter’s prohibition against “the threat or use of force against the territorial integrity or political independence of any state”. (Orford, February 2011 )The dilemma fails to understand how a state can fundamentally establish its own right to limit its sovereignty through ratifying treaties and other international obligations. The UN Charter can be taken as a simple example and further the R2P is a pre-requisite for a statehood as per the Montevideo Convention expects nation-states to have the capacity to enter into relations with other states to earn legal recognition in the international law. The ICISS reports points out “external sovereignty” (respecting other states) is only applicable for the states which fulfill the obligations come under the “internal sovereignty” (the primary obligation includes protection of civilians within the territory). According to Crossly, the concept of “equal sovereignty” in international customary law for the states who misuse their “internal sovereignty”. (Henrikson, 1996)

The Article 2 of the UN Charter is ambiguous, not only restricts the application of responsibility to protect concept but also challenges the practicability of Regional Organizations utilizing this international law norm.  Article 53 of the Charter emphasizes that Regional Organizations are not authorized to “enforce actions” without the UNSC Resolution. Article 24 is vested with promoting international peace and security and thus Article 54 expects the ROs to support for peace and security arrangements within the regional level. (Zifcak, 2011) Further, ROs are given secondary authority to deal with peace and security conflicts within the region, next to International Organizations and International Treaty Law. This freedom can be misused and the most practical example is NATO’s intervention in Kosovo which was criticized by the international society as it lacked humanitarian purpose. Therefore, it is important the ROs’ founding Charter should include the clauses of R2P which are justified validly by Member States before incorporating. (Cuéllar, 2004)

The most recent practical example of how Regional Organizations can be effectively utilized to tackle down the internal conflict of a region under the concept of Responsibility to Protect. When Boko Haram Insurgency started threatening the political integrity of Nigeria and the Member States, the African Union initiated multiple actions against terrorist including creation of “Multinational Joint Task Force”, without any approval from UN Security Council.  Instead of waiting for Security Council’s approval, having known to the background of the Nigerian integrity and the situations of the neighbor states, African Union used Responsibility to Protect as an effective counter-terrorism strategy to defeat Boko Haram. (Brechenmacher, 2019 May )

Responsibility to Protect is an obligation of internationality based on humanitarian concern of preventing mass atrocity crimes and human rights violations. Adapting to some theoretical and practical challenges can not only strengthen the implementation of the norm but also fill the already existing loopholes found in the application of the norm.  The changes include incorporating of Regional Organizations as players of intervention overlapping the R2P concept, making structural changes in the United Nations Security Council methodology and stressing out the fact the R2P should carry a legally binding role in the international customary law although it is not passed through a legally binding treaty.

MaathumaiParanthaman is a UN Volunteer attached to Office of the High Commissioner of Human Rights (OHCHR). She currently works as a Program Support Officer at Human Rights Commission of Sri Lanka. She holds LL.B (Hons) from University of Wolverhampton, UK and a Master in Human Rights at University of Colombo. Her research focuses on human rights, conflict and peace studies and international law.

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International Law

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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Photo Credit: Wikimedia Commons

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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