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International Law

The Last Hours Before Dawn

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The coronavirus pandemic has plunged the world into all kinds of discouraging thoughts. Most analytical articles talk scathingly about the international system and offer bleak forecasts for the remainder of the 2020s.

Analysts have set their sights firmly on the issue of globalization. Some say the globalization processes we have seen have not gone far enough, while others say that globalization has spread way too far. The paralysis of international institutions, particularly the United Nations, has outraged international affairs experts and ordinary people alike. The blame for the global failure in the fight against the virus has been placed squarely on the shoulders of the World Health Organization, although aspersions have also been cast at the UN Security Council, which, as an international instrument, has wilted in the face of this global threat to humanity.

At the same time, pessimists see the ineptitude of international institutions not as the root of all problems, but rather as a consequence of globalization. In the blink of an eye, the successes of the globalization project — open borders, mass tourism and transnational cooperation (which were used shamelessly by both sides, liberals and conservatives) — had become a common evil. The wave of xenophobia that swept through several (mostly former Communist) countries, which was also directed at fellow countrymen who happened to be abroad when the pandemic hit, was welcomed by a number of experts, even though history has taught us that the fallout in cases like these is rarely positive.

In an article for Foreign Affairs, the most prominent representative of the American school of realist thought today, Stephen Walt, concluded that we will soon see a retreat from hyper-globalization and a return to the concept of a strong nation-state that is capable of protecting its citizens.

On the one hand, it is quite natural and logical that critical assessments and negative scenarios will prevail, but they also seem to have hypertrophied. Natural because it looks like a defensive reaction to a new, incomprehensible and unpredictable phenomenon. Logical because, unlike the modernist period, which was marked by a certain optimism that progress would continue unabated forever, society today is a product of postmodernism, for which the author, freedom and God are all dead. At the same time, even in these darkest of hours, we still know that a new dawn will come. It may be different from all the dawns we have known before, but it will bring light, warmth and sunshine, nonetheless.

If we look at the coronavirus crisis from a different angle, then we may come to new and perhaps completely unexpected conclusions. The way I see it, the coronavirus has brought forth two extremely important characteristics of modern society: 1) that we value human life over any economic goal (be it economic growth or profit) and basic freedoms (for example, the freedom of movement); and 2) that modern society and political systems have not gone far enough in terms of globalization.

The first characteristic is not obvious to many, but this fact itself confirms that human worth has become an integral part of the cultural code of all modern countries, regardless of their political structure or economic system. A few centuries ago, this kind of viral pneumonia (like COVID-19) would have gone completely unnoticed: yes, large numbers of the elderly and infirm would have died, but life would have gone on as usual. Experts are already saying that the COVID-19 death rate is nowhere near that of the pandemics that ravaged the planet in the past.

The second characteristic clearly runs counter to the general consensus among analysts who blame the crisis on globalization and prophesy the emergence of a post-global world. Upon closer inspection, however, it would seem that their criticisms have little to do with the objective side of globalization (the development of technology, transport and financial instruments) and rather refer to what Ulrich Beck called the ideology of globalism, the goal of which is to promote and impose the economic model and financial interests of a narrow group of interested parties.

If we accept that “globalization is a reality, not a choice” (as Richard Haass wrote recently in Russia in Global Affairs), then we can come up with quite constructive proposals for “restarting” globalization, rather than getting rid of it altogether. As Fareed Zakaria correctly points out, “Globalization since 1990 could be described as having moved three steps forward and only one step back.” Therefore, the “gap year” that is 2020 may be a useful place to stop and take stock of the successes and failures of the international community.

It is clear even today that the myth of “blissful globalization” that French politicians and experts often talk about (Hubert Védrine in Le Figaro, Alain de Benoist in Russia in Global Affairs) needs to be put to rest. In its place, we need to see a project that aims to reset the entire process, and where we learn from our past mistakes. What needs re-examining? Naturally, the balance between the national and the international, transnational and global. As the Russian philosopher Artemy Magun quite rightly puts it, “it turned out that we were entirely unprepared to manage the very thing we had created — a globalized world.” Globalization post-coronavirus will have to take place on four levels at once, and appropriate competencies and powers that are best suited for dealing with the challenges of the 21st century will need to be selected for each level. It is just as wrong to castrate certain states and declare globalization a panacea as it is to build outposts on borders and down all international air traffic.

The first attempt to combine globalization with the international system of political and economic governance, Globalization 1.0, was, to some extent, a Potemkin village: the piles had been beaten into the ground and the outer walls built, but the building itself was unliveable and waiting out the storm in it was simply impossible. In addition to a meaningful reform of international institutions, the new version of globalization should build a sturdy framework for relations between states and foster a new type of international solidarity that will unite societies and citizens not by removing their national identity but by complementing it.

In fact, despite the usual forms of global interaction (in terms of business, tourism and migration) falling somewhat by the wayside, global network integration has actually increased “rather intensively in the somewhat low-key sector of science and research: journals are opening up their databases, the largest research centres in the world are granting use of their supercomputers, etc.”

We can thus conclude that not all changes that will come about as a result of the coronavirus will necessarily have a negative effect on globalization. As Alexander Auzan notes, “changes in the world order caused by large-scale upheavals are not always a bad thing” given our past experience: “One of the consequences of the Black Death in Europe was the start of the Renaissance, the subsequent cooling of the 16th–18th centuries and, it is believed, the Industrial Revolution.”

Coronavirus has given us the opportunity to rethink not only global processes, but also processes of a more localized nature. It has also given us cause to ponder the question of what the substance of the relationship between the state and the individual will be after the global health crisis subsides.

Meanwhile, the expert community is embroiled in a heated debate: Which political system has dealt with the trials of the coronavirus best and can thus lay claim to being the new model for the rest of the world? Has democracy managed to cope with its unswerving insistence on the primacy of human life and the complex system of checks and balances it has built? Or has the moment arrived where the undeniable effectiveness of authoritarian or hybrid regimes has to be acknowledged?

This dilemma was particularly evident when the epidemic was coming to an end in China (thus proving the “effectiveness” of the authoritarian approach) but had only just started to take hold in Europe and the United States. Tensions surrounding this issue soon subsided, however, as the reality of the situation demonstrated that the appearance of coronavirus had not set a gradual global shift towards authoritarianism in motion. The pandemic also showed that those countries where authoritarian practices had already been introduced and were generally accepted by society, as well as those countries where there was a certain inclination towards such practices, continued to use such strategies throughout the crisis. Similarly, those countries that place humanitarian and democratic principles above all else stayed true to their ideals during the pandemic. For example, as late as mid-April, Sweden had still not introduced any restrictive measures. And the measures taken in Western Europe are nothing compared to those taken in China. To begin with, the majority of the restrictions that were put in place were not particularly rigid and, secondly, they relied on citizens to behave in a responsible manner and observe the lockdown regimes, because, after all, people are not simply “objects” of the state machine and are rather “brothers- and sisters-in-arms” in the common fight against the virus. The worst-case scenario in terms of people ignoring the quarantine in France, for example, never materialized. As of April 2020, when most European countries were either approaching or had already passed peak incidence, we can state that no democratic or even hybrid regime had fully adopted the Chinese model of combatting the coronavirus.

Interestingly, populism has also demonstrated its worth as a (relative) political model during the crisis. Most of the leaders who had come to power on the waves of populist sentiments quickly abandoned their populist tenets and soundbites as soon as the pandemic started getting out of hand. They were forced to discard their usual bravado in the face of the virus and adopt measures that they had seemingly not been willing to adopt beforehand (Donald Trump took the decidedly “socialist” step of offering benefits for those in need; Boris Johnson grudgingly introduced strict lockdown measures after long refusing to do so, thus earning his country a position near the top of the table of coronavirus victims). The pandemic has shown that populism is most likely a reaction to a crisis of the political establishment and is all but useless when it comes to dealing with the challenges facing modern societies in a globalized world.

Experts are now generally in agreement that national governments and states as a whole will step up their role in world politics. And it is quite natural for societies that have lived according to the laws of the Westphalian system for over three centuries to “turn back” to the government. However, it is not entirely clear how exactly globalization has prevented states from having a developed and competent medical infrastructure (hospital beds, ventilators, etc.). For many countries, the defeat in the fight against coronavirus was a result of their own failures in healthcare management.

The fight against the novel coronavirus has done little to boost the standing of the state; instead, it has shone a light on the role of society in overcoming the crisis. The unprecedented quarantine measures in European countries would not have been possible without consent and willingness of the people, who saw the restrictions that had been placed on their basic rights as both necessary and vital for society. This complicity was manifested not only in passively following government instructions, but also in everyday life: careful attention to personal hygiene; almost completely cutting off social contacts; giving up certain personal comforts, etc. The French establishment quickly made a point of presenting an alternative to the Chinese model in the form of civic consciousness, which it could then display to the rest of the world.

This experience may come in handy as a method of overcoming the crisis of direct democracy that has been unfolding across the world over the past 20 years: sitting at home in self-isolation may have convinced people to take a more responsible attitude towards political processes, on which both our future economic wellbeing and, as the spring of 2020 has shown, our security and, ultimately, our lives depend.

Whatever the case may be, people across the world were given the unique opportunity in early 2020 to live a completely digital life, with virtual and actual reality swapping places for a short time. It was a kind of test drive, or perhaps even a crash course, in how to live a completely digital life for the global community. Discussions about this experience have also proved divisive. Digital optimists argue that the world will never be the same again — people will study, work, buy their groceries and even “go to the cinema” online. Digital pessimists (or, more precisely, digital rejectivists) tend to completely demonize the experience of the Eurasian continent being plunged, against its will, into the digital world. The truth, as always, is somewhere in between.

The coronavirus crisis demonstrated that this temporary transition to online life helps us to better understand: what needed to be digitalized (and the costs of rectifying this situation for all stakeholders, including hired workers); what, on the contrary, would be rendered obsolete by the transition to online; and what could exist in a double or mixed format that would bring greater comfort and benefit to everyone.

The first group may include grocery delivery, which could change how supermarkets and the retail food industry as a whole operate. The second group could include entertainment — the inherent value in dining at a restaurant, watching a film at the cinema or going to the theatre to watch a play. And the third group could include higher education, where the topic of reform is ever-present yet wholly unwelcome among teaching staff: distance learning courses have already shown that a part of the educational process can be shifted to online or video conferencing modes (with lectures streamed online), although in many cases a live dialogue in a classroom is also needed and cannot be replaced by Zoom chat.

One thing is for certain, however, and that is that the massive experience of digitalization will lead to greater flexibility in almost all industries. The public sector (not including strategically closed industries), business (including SMEs and major corporations), education and a host of other spheres will all demonstrate flexibility with respect to working hours, work mode (online, offline, mixed) and corporate hierarchy (the effectiveness of horizontal communications when all members of a team work remotely).

Coronavirus came as a shock to the system at every conceivable level of public life — global, national and individual. When it is over, the world will be a completely different place. And this is something that both realists and liberal researchers can agree on. Having come through the first true shock of the 21st century, the global system that has been kept on its toes by the dialectical interaction of global, transnational and local processes will regroup and continue to function.

As Mikhail Epstein says, “from the point of view of large civilizational processes, the pandemic itself can be considered a kind of vaccine against a large-scale war.” It thus follows that the new world system that emerges after the crisis will be more resistant and secure.

From our partner RIAC

Ph.D., Associate Professor, Deputy Head of the Department of Political Science at the Higher School of Economics National Research University Campus in St. Petersburg, Assistant at the Graduate School of Management, St. Petersburg State University, RIAC Expert

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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International Law

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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