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International Law

A Need to Reaffirm the Nuremberg Code

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A state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.-Definition of Health, Preamble of the World Health Organisation (WHO) Constitution, 1948

These days, many argue that our Covid (C-19) response is a planetary fiasco, whose size is yet to surface with its mounting disproportionate and enduring secondary effects, causing tremendous socio-economic, political and psychosomatic contractions and convulsions. But, worse than our response is our silence about it.

It is an established fact that the quintessence of Nazism was not Hitler and the circle of darkness around him. It was rather a commonly shared ‘banality of crime’ atmosphere: Benevolent acceptance of ordinary village people living next to Auschwitz, Mauthausen, Dachau that the nation must be ‘purified’ … The day when questioning stops and silent acceptance becomes a ‘new normal’ is a day when fascism walks in a big time. Of course, today we have a diagnosis for it: Manufacturing consent through choice architecture, of a fear-imprisoned,via media infantilised (returned to the pre-Oedipal phase) psychology of the de-socialised and alienated, an atomised one.

Appinion disguised as opinion

Did we really forget basic teaching of our history: Every time when the power was unchecked, it degenerated into the obscure brutality; ritualising its force with a stamp on or under our skin to visualise and immortalise the twilight of reason?

So, our C-19 response illustrates – the argument goes – nothing else but a social pathology: the non-transparent concentration of power, and our overall democracy recession – further bolstering surveillance and social control systems. All that as lasting consequences of cutbacks, environmental holocaust, privatisation (or PPP-ization) of key intergovernmental and vital national institutions, ill-aimed globalisation as well as of the fixation onoverly allopathic, mandated (not repurposed but usually novel and expensive) drugs-centred healthcare, and lack of public data commons. Pandemic or plundermic …

Trust in and support to governmental and intergovernmental institutions is rapidly deteriorating. Ever larger number of citizens do not see the mainstream media (or pop culture celebrities) at service for population. Dialogue and opinionation is rarefied and discouraged, if not even sanctioned. Hence, the faith in western medicine is in a free fall. Compromised generational contract and thinning social consensus are challenging our fabrics like never before in recorded history. The first real stress-test since the end of the WWII, the United Nations (UN) clearly didn’t pass. Many feel deeply disappointed with and disfranchised by the universal organisation and its Agencies for its lasting “self-marginalisation”.[1]Is our cohesion irreversibly destroyed?

Early lockdowns, mid-March 2020, were justified by a need to flatten the curve of the ‘sudden’ virus’ (harmfulness, mortality and transmissibility) impact, since there were no enough hospital beds. In the meantime, the lockdowns were extended and widened, curves not arguablyaltered. Still, for the past 9 months, there is hardly any new hospital built in the EU although the non-essential medical services are by and far suspended. Neither there was or is any massive investment into general health prevention. The only visible infrastructure growth is in 5/6G networks expansion. 

Following a simple ratio that the one’s level of health is genetic expression of life-style choices made, it is no surprise that there are also growing speculations if the lockdown – as the most notorious expression of monofocal perspective and rejection to any scientifically contested, debate-based integratedjudgment– is invasion or protection:

  • Whetherthe aim is a herd-immunity or herd loyalty (and to it related growing, yet still unrefuted, rumours that the eventual ‘unsafe, unneeded and ineffective’ C-19 vaccine (or genoccine) might contain biohacking nano-properties which establish backdoor interface via extensively set 5/6G, besides viral interference and transduction as standard side-effects in the clinical trials ever since 2002)?
  • And, if is there any back-to-normal exit from the crisis, or this disaster ‘turned into planetary terror, through global coup d’état’ will be exploited to further something already pre-designed (with a fear, not as a side-effect, but rather as a tool manufactured to gain control).Simply, is all that more related to the biotronics and demographics – ‘epsteinisation en masse’, than to health and economics or any common social purpose?

E.g.Le Monde Diplomatique – while examining the possible merge between tech oligopoly and political monopoly – claims: “Political decisions have been central in shaping this tragedy — from the destruction of animal habitats, to the asymmetric funding of medical research, to the management of the crisis itself. They will also determine the world into which we emerge after the worst is over.” Over the past 30 years, every critical juncture had a similar epilogue: pardon and enhancement for the capital, a burden and suppression for the labour. The C-19 is no exception to it: Ever since early lockdowns of March 2020, the capital flows unhindered while the labour, ideas and humans are under the house arrest.[2]The XXI century frontline is the right to health (incl. body integrity and informed consent) and labour, privacy and other fundamental human rights and liberties. (LMD, IV20)

Earth provides enough to satisfy everyone’s needs, but not for a single man’s greed

Still to be precise, the WHO- decreed virus pandemic brought nothing truly new to the already overheated conduct and increasingly binarized world affairs: It only amplified and accelerated what was present for quite some time – a rift between alienated power centres, each on its side of Pacific, and the rest. No wonder that the work on the C-19 vaccine is more an arms race than it is a collaborative humanistics.

Would all this be – in its epilogue – about the expansion of techno-totalitarian model of government as an alternative to liberal democracy? Devolutionary singularisationinto techno-feudalism as the highest stage of capitalism? Is now a time to return to the nation-state, a great moment for all dictators-in-waiting to finally build a cult of personality? Hence, will our democracy be electro-magnetised and vaccinated for a greater good (or greedier ‘god’)? Will we be (ever) allowed to exit this year?

One is certain, confronting the long-term interests of stakeholders with the short-term interests of shareholders, the private sector from both sides of Atlantic exercises disproportionate power in the technological share (infrastructure and data). It alsolargely benefits from the massive public research funds while in return paying dismal, negotiable tax if at all.[3]Far too often it comes with the nondisclosure agreements, liability outsourcing/protections and other unilaterally beneficial legal instruments as well as with the close ties between the private sector, intelligence agencies and media.[4]

The same applies to a big Pharma which increasingly dictates a non-preventive,monofocal approach to medicine and research, and controls reporting about it – not always in the name of our public health.

Therefore, the above represents the largest underreported threat to our democracy and future societal conduct.

Conclusively, bioinformatics is a dual-use technology. Past its formative age, it has today a huge weaponization potential for at home and abroad. Consequently and urgently,thisnecessitates a comprehensive legislation which builds up on the Universal Charter of Human Rights and Nuremberg Code, and rests on its effective enforcement (with the monitoring of compliance mechanisms as set for the IAEA, OPCW, RC-BTWCand the Nagoya protocol),[5]nationally and internationality.

Pop Europe, back to its Future

By many accounts, 2020 – a year when distancing became social – will be remem- bered as the worst year in living memory (since 1939). Some would say; C-19 stopped history, as it locked down our dialogues. Actually, 2020 only quarantined and halted us, while in fact it accelerated history. This especially refers to the Old Continent.

As this author noted in spring 2020: “It is amply clear from the C-19 event that the right to health is an issue for all. The search for a reliable cure for pandemics control is not a matter of private business, but of fundamental individual rights situated on higher levels of sociableness, as embedded in the UN and EU Charters, and being obligatory for each of the UN Specialized Agencies or EU bodies to comply with. (Not a fear based manufactured consent, but the right for informed consent as an inseparable segment of the constitutionally endorsed right to health.)

Even if the vaccine becomes the agreed or preferred option, it must be made available patent-free for all, and locally manufactured. However, binarization of debate onto a pro-and-con vaccine represents a dangerous reductionism and waste of planetary energy critically needed for a holistic and novel approach. There is no silver bullet for the European problems. Consequently, there is no solution in one-directional medical research in response to any pandemic, and in a single-blended (centrally manufactured, hastily introduced) and mandated medication for all. This especially refers to the genoccine.[6](Dogma is based on a blind belief; science necessitates constant multidimensional exploration. Science, especially a medical one, holds no single or absolute truth: The closest it can get is to the least wrong answer – which must be contested constantly, literally every day.)

Proportionality of our (current and future) responses in Europe is another key issue. Hence, what presents itself as an imperative is the universal participation through intergovernmental mechanisms. That rule applies for at home and for abroad, as the Union has to comply with(and set example to) it urgently – since biology and geopolitics have one rule in common; comply or die.

Growing particularisms in Brussels quarters, where (on taxpayers money and public trust)it is more and more the particular – be it individual, regional, national, lobby-groups driven – interest that prevails over the solid all-European project of our common presence and future.”[7]

Past the Brexit, the EU has to be extra cautious about its chronic democracy-deficit, apparatchik alienation of Brussels, as well as the brewing concerns that the EU without UK becomes yet another greater Germany.[8]


[1]The UN Secretary-General, Antonio Guterres is well aware of it: Addressing the Organisation’s General Assembly at the 75th anniversary (September 2020) he admitted: “… people continue to lose trust in political establishments. … widespread protests against inequality, discrimination, corruption and lack of opportunities all over the world – grievances that still need to be addressed, including with a renewed social contract.”

[2] Even in the neutral and peace-loving Austria – following the provisions of a strict autumn 2020 lockdown – only the basic supplies shops are opened. However, besides the grocery stores and pharmacies, it also includes the guns shops, while the schools, theatres and museums remain closed.

[3] “The pandemic has also reviled how imbalanced the relationship between the public and the private sector has become. In the US, the National Institutes of Health (NIH) invests some$40 billion a year on medical research and has been a key funder of the R&D of C-19 treatments and vaccines. But pharmaceutical companies are under no obligation to make the final product affordable to Americans, whose tax money is subsidising them in the first place. … It was a typical move for Big Pharma. … Even so, US drug prices are the highest in the world. Pharmaceutical companies also act against the public interest by abusing the patient process. … Equally bad deals have been made with Big Tech. In many ways, Silicon Valley is a product of the US government’s investments in the development of high-risk technologies. The National Science Foundation funded the research behind the search algorithm that made Google famous. The US Navy did the same for the GPS technology that Uber depends on. And the Defence Advanced Research Project Agency, part of the Pentagon, backed the development of the Internet, touchscreen technology, Siri, and every other key component in the iPhone. Taxpayers took risks when they invested in these technologies, yet most of the technology companies that have benefited failed to pay their fair share of taxes. Then they have the audacity to fight against regulations that would protect the privacy rights of the public. … the power of AI and other technologies being developed in Silicon Valley, a closer look shows that in these cases, too, it was high-risk public investment that laid the foundations” – states prof. Mazzucato(FAM 99/6/20)

[4]See, eg. the EU Pandemic Accelerator Act (April 2020) or the July 15th 2020 Suspension of the EU GMO-related legislation (the so-called EU Council adoption of the Commission’s proposal to accelerate clinical trials and the supply of medical product containing the GMOs) – all promulgated speed-track without a prior investigative scientific reports, hearings or debate. These are now submitted to the European Court of Justice for a legality and impartiality judgment. In the same fashion the recently adopted European Democracy Action Plan (EDAP) leaves many ambiguities, while also contradicting the European Convention on Human Rights.

[5] All fourbelonging to the United Nations system: International Atomic Energy Agency (IAEA), Organisation for the Prohibition of Chemical Weapons (OPCW), Review Conference to the Biological Weapons Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (RC-BTWC), the Nagoya Protocol to the Biological Diversity Convention on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation (NP).

[6]It is a more accurate name for the experimental, new, RNK and DNK modified, nanotechnology-based tri-injecting solution currently advocated for C-19.

[7]See: “World on Autopilot: The UNSC should urgently address C-19”, New Europe Brussels (Bajrektarevic-Agam, 10 APR 20); “Contributing to a Safer, Healthier and Prosperous World”, Diplomat Magazine Hague (Bajrektarevic-Goutali, 12 MAY 20);”Return of Global Stewardship: the UNSC should urgently address C-19– addendum” (Bajrektarevic-Agam, 25 May 20), ModernDiplomacy Athens/ Brussels; “Democracy Vaccinated, – The post-Corona epilogue of Sino-American relations”, (Bajrektarevic), L’EuropeUnie Intl. Journal, Revue d’étudeseuropéenne, Paris, France 2020 (15) 2.

[8] On December 18th 2020, the UN General Assembly (UNGA) adopted Resolution against glorification of Nazism, neo-Nazism and other practices that encourage modern forms of racism and xenophobia. 60 UN members co-sponsored resolution, while only 2 states casted negative vote. Rather strikingly and disturbingly, Germany refrained from voting in favour (abstained). The UN GA recommends states “to take appropriate concrete measures, including legislative and educational ones, in accordance with international human rights obligations, in order to prevent revisionism in respect of the Second World War and the denial of the crimes against humanity and war crimes committed during the WWII.”

Modern Diplomacy Advisory Board, Chairman Geopolitics of Energy Editorial Member Professor and Chairperson for Intl. Law & Global Pol. Studies contact: anis@bajrektarevic.eu

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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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