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International Norms On Fair Hearing: The Case of US, UK and India

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Fair hearing and its elements have been a hotly contested issue in administrative law. The right to fair hearing has traditionally been an indispensable aspect of the rules of natural justice. Broadly, the right to a fair hearing contains of several elements including but not limited to the right to a free and fair public hearing, the right to an independent and impartial tribunal and the right to present at an oral hearing. However, while fair hearing norms originates in the Articles 14 and 21 of the constitution in India, USA and UK trace it back to the 5th Amendment of the US Constitution[1] and Section 6 of the European Convention on Human Rights[2] respectively. Thus, the elements of fair hearing in the United States of America, the United Kingdom and India differs owing to these constitutional variations. These differences then evolve owing to diverse judicial interpretations which are based on different factors including expense, time and the need to avoid unduly binding administrative law making.

Despite these differences, fair hearing remains an important requirement in the process of administrative adjudication and ensures that every person being affected by a decision is granted a hearing before he suffers detriment. Thus, it is important that fair hearing remains an internationally recognised civil right while leaving significant discretion to individual states to adopt different procedural norms for practical demand.

This paper aims to understand the elements of fair hearing in three jurisdictions, namely US, UK and India. Accordingly, it first briefly traces the origins of the concept of fair hearing in administrative law and then narrows it down to understanding the evolution of the right in the three countries. Second, the paper makes a detailed scrutiny of the different elements of fair hearing in US, UK and India, observing the similarities and the differences. This involves exploring the judgments and legislative norms laid down in the three countries in this regard. Lastly, it specifically examines the effectiveness of the Indian notion of fair hearing in addressing administrative issues and ponders over the need to borrow from US and UK jurisdictions in this regard.

It concludes by reemphasising the importance of the right to fair hearing and how the differences in the fair hearing frameworks of the three countries points to different administrative demands and patterns.

FAIR HEARING NORMS: ORIGIN AND EVOLUTION ACROSS NATIONS

The norms of natural justice were originally imposed in common law countries as minimum standards of fair decision making so as to ensure that bodies or persons ‘act judicially’. The natural justice norms were later differentiated into two rules: the rule against bias and the right to a fair hearing. However, while European nations focused more on non-procedural aspects such as jurisdiction and correct legal reasoning, the US Supreme Court insisted on understanding fair hearing norms as ‘the essence of the scheme of ordered liberty’[3]. This is difference is elaborated as follows-

The initial academic discussion on fair hearing in the US centred on due process norms. For instance, the courts in Crowell v. Benson[4] and Ohio Valley Water Co.[5] ensured that due process norms imposed traditional procedural restrictions as well as absolute limits on the powers of administrative bodies. On the other hand, the Human Rights Act 1998[6] in UK gives effect to the Article 6 of the European Convention on Human Rights which declares the norms for a fair hearing. The elements of fair hearing in UK originating from Article 6 of ECHR allow tribunals to have considerable discretion in conducting trials and admitting evidences. However, they are expected to uphold “natural justice” norms especially when taking decisions that directly affect the “legitimate expectations” of a government body[7].  

The Indian administrative law assumes audi alteram partem or the right not to be condemned unheard to be an essential constituent of natural justice norms. Accordingly, the right to fair hearing, although not explicitly legislated on, has been firmly grounded in Articles 14 and 21 of the Indian Constitution. Further, fair hearing norms involve several different rights recognised through various judicial precedents i.e. right to notice, right to present case and evidence, reasoned decision etc. The norms have also provided for certain exceptions in the administrative law which form legal grounds for avoiding the application of fair hearing norms. However, there is no straightjacket formula for its determination and it depends on the particular circumstances of an administrative law case[8].

Thus, it may be argued that the fair hearing norms of the three countries have had different origins thus different substantial outputs. For instance, while English and Indian laws do not have general due process requirements for all governmental action affecting private citizens, it is quite the contrary in the US law. Nonetheless, fair hearing maintains its universal applicability in ‘laying duty upon everyone who decides everything’. 

ELEMENTS OF FAIR HEARING IN US, UK & INDIA: VARIATIONS AND DIFFERENCES

Owing to different origins and administrative law advancements, the fair hearing norms of UK, US and India substantially differ from one another. For instance, the US norms demand that a party not only be given opportunity to present evidence, but allowed to know the claims of opposing party as well as meet them. Those who contest government claims in a quasi-judicial proceeding are expected to be informed of government proposals and heard on them before the final order[9]. Similarly, the US law does not guarantee a right to oral hearing under fair hearing norms and decides upon it on a case to case basis.

More importantly, the Constitution of the US, in its 5th Amendment, also does not guarantee a trial type hearing in every governmental infraction of private rights[10]. For these reasons, administrative bodies such as the Civil Rights Commission do not accord the right to confront or cross examine witnesses as they only serve as investigative bodies and make no adjudications.

The present norms on fair hearing in United Kingdom may be traced to the judgment in Ridge v. Baldwin[11] which abandoned analysing the administrative and adjudicatory roles of decision making bodies and turned to the precise content of the complainants’ rights. The judgment declared that the applicant in an administrative law case may rely on prior legitimate expectations that the law will fulfil in the absence of countervailing considerations. This expectation may arise out of any prior course of conduct by the executive bodies in regard to the applicant’s case. The adjudicatory body will then have to determine the exact content of the right through these legitimate expectations[12]. However, the ECHR which is the basis for the UK fair hearing norms lay down three participation principles that are to be necessarily complied with. These are the principle of respectful treatment, the ‘equality of arms’ norm and the adversarial principle.

In India, the concept of fair hearing is a fairly elastic one and may not be contained within any precise definition. Thus, there are no indispensable standards of reasonableness that have to be complied with except that the conscience of the court should be satisfied that the person who will be affected by a decision has had a fair chance of convincing the particular authority[13]. However, the Supreme Court of India has also clarified that the principles of natural justice demand that a minimum fair procedure be always followed. This minimum fair procedure is, however, for the court to determine based on the particular facts and circumstances of the case. Nonetheless, the court has through judgments such as Maneka Gandhi v. Union of India[14] espoused fairness jurisprudence in regard to the civil rights of a citizen. Accordingly, some liberal norms for fair hearing that the judiciary has laid down over the years include: decision maker to be above bias, need to state reasons etc.

The United Kingdom, the United States and India all fall in the category of commonwealth nations. However, their legal regimes and fair hearing notions are marked by wide differences. For instance, while the UK law focuses on a limited arena of the norms of natural justice, the US law is embedded in the concept of procedural due process[15]. However, while US makes use of the right to notice and right to be heard to further the basic constitutional guarantees of the protection of life, liberty and property, UK also uses the ‘margin of appreciation’ in ECHR norms to guarantee the same rights[16].

Further, the right to fair hearing in UK is expressly limited by several factors ranging from merits of a case to morals and national security. On the other hand, although there exist no identifiable limits on due process and fair hearing norms in US, the identified purposes of procedural due process and rule of law serve as implicit limits[17].

On a comparison between Britain and India, while Britain has experimented with a right based approach before returning to the basic principle of fairness as a core constituent of fair hearing issues, India has merely made sporadic attempts to disregard statutory stipulations in order to preserve fairness and natural justice procedures.

Additionally, the Indian Supreme Court has stated that the notwithstanding any finality clauses in any act, Articles 136 and 226 allow the judiciary to review a law for violation of natural justice norms[18]. This is in contrast with US law which excludes certain congressional norms from the purview of due process requirements and judicial review. The US also has relaxed norms for attracting fair hearing norms as compared to India. For instance, while the US law allows for its non-application only in non-immediate matters or during subjective applications of the act, the Indian Supreme Court has insisted that audi alteram partem may only be used only in the instances of the violation of liberty or property causing grave injustices[19].

Therefore, it may be conclusively argued that the laws on fair hearing in the US, UK and India are based on entirely different perceptions and have evolved accordingly, thus the vast differences.

INTERNATIONAL FAIR HEARING NORMS AND COMMON LAW TRADITIONS

Notwithstanding the differences between the fair hearing norms in the US, UK and India, there are startling similarities owing to their similar common law origins. The fair hearing norms in all the three countries have constantly strengthened and have expanded the substantive idea of fairness so as to achieve fairer outcomes. This is largely because of the natural law entitlements of individuals that common law traditions have endowed upon the masses. Further, all common law jurisdictions share social policy, tradition and elaborated analogies in various forms. Thus, the right of a man to be given fair opportunity to be heard on what has been alleged against him is a universal principle in all common law jurisdictions and hence, in all three countries, namely US, UK and India[20].

Similarly, common law countries as well as nations falling under the jurisdiction of ECHR i.e. UK, allow quasi-judicial agencies to not completely comply with all the norms of procedural fairness if the affected person has any recourse to a further hearing or appeal. On the question of exceptions to the natural justice norms too, UK and India both use similar factors of time, place and apprehended danger etc. to ascertain their application. However, all the applicable exceptions are merely circumstantial and not conclusive[21].

Further, another common law norm adopted by all the three countries is the requirement for adjudicating bodies to provide reasons for the decisions they make. In India, duty to provide reasons as a requirement of fair hearing norms, even in the absence of statutory provisions, is a judge-made law[22]. In UK, the section 12 of the Tribunals and Inquiries Act, 1946 requires them to provide with reasons only when the parties ask for them. However, there is now a judicial trend for transparency that mandates the administrative authorities to provide reasons in all circumstances[23]. Finally, in US too, Section 8(b) of the Administrative Procedure Act, 1946 mandates administrative agencies to give reasons for their decisions.

Another important similarity between the fair hearing norms is the principle of ‘one who decides must hear’. Accordingly, UK’s House of Lords in Arlidge[24], the Indian judiciary in Nageshwar Rao[25] and the US Supreme Court in Morgan v. United States[26] have made clear that the duty to decide a case cannot be performed by someone who has not heard the arguments or evidence. Thus, unless it unduly complicates administrative proceedings, one administrative body should decide a case from the beginning to the end in all the three countries.

Additionally, the principle of post decisional hearing has been considered to be an exception in all common law jurisdictions, especially US and India. The Indian Supreme Court in H. L. Trehan[27] has clarified that post decisional hearing should not subserve the norms of natural justice and it may only be used in exceptions such as deprivation of life and liberty etc. Similarly, in US, due process requires that fear hearing is ensured with promptitude. Thus, post decisional hearing is allowed only in the case of extreme violations of public interest of impracticability and emergency.

Most importantly, in all three countries, principles of natural justice and fair hearing norms are meant to supplement and not alter the law. They are an integral part of the concept of good governance norms and hence, any claim to exclude any particular administrative hearing from the purview of fair hearing norms imposes the burden to prove so on the one demanding such exclusion[28].

Thus, it may be concluded that the UK, US and India respect certain elements of fair hearing as absolutely essential and have incorporated them into the law in different forms. The three countries owe these similarities to their common law origins which have retained some traditions and practices for many centuries.

FAIR HEARING IN THE INDIAN LAW AND THE NEED FOR CHANGE

In India, there is no statutory enactment on the minimum procedures that administrative agencies have to comply with. The vigilance of the judiciary has thus, become the best safeguard for fair hearing and procedural fairness in extremely complicated administrative law cases. This is accompanied by constitutional provisions in Article 311 of the Indian Constitution that provides the right to hearing of a civil servant when he is removed, dismissed or reduction in rank. Accordingly, the person affected by the violation of his civil rights may use constitutional provisions or the concerned statue to argue principles of natural justice without invoking any prejudice or civil consequence. Further, the constitutional affirmation of the natural justice norms by the judiciary has ensured that they are read into every administrative case, subject to exclusions. As the Indian administrative law is largely judge-made, the exclusions to natural justice norms i.e. confidentiality, impracticability etc., have also been developed through judicial precedents only[29].

Additionally, Indian courts have made clear their stance on the effect of any administrative law decision made in violation of the rule of bias. The aggrieved individual or body has the opportunity to accept such decision and it may not be necessarily void. This acceptance of the bias will be deemed to have been done if the party has the conscious knowledge of such a bias[30].

This analysis makes it clear that the Indian administrative law has various elements of fair hearing that are unique to the nation in different ways. There are little determinable standards on what fair hearing constitutes and judiciary has preferred to use higher standards in cases of more serious consequences. However, all the fair hearing norms are designed to prevent authorities from doing injustice[31].

The above analysis indicates that the Indian administrative law has its separate and unique needs and the judicial precedents on fair hearings are comprehensive enough to adequately address them. However, the judiciary needs to ensure it keeps certain important principles on fair hearing in mind. For instance, the inherent human dignity of persons before the tribunals be respected, they be entitled to consult and represented by a legal representative and provided adequate opportunity to present their case, among others. 

CONCLUSION

The elements of fair hearing in the United Kingdom, the United States and India have originated and evolved according to the individual administrative needs of the three nations. For instance, while US law solely insists on due process norms based in the 5th amendment, the UK and Indian laws are equally focused on technical administrative requirements such as the legal eligibility of a body to listen a case. The Indian administrative law is in its infant stage and thus has witnessed the judiciary espousing hitherto unused natural justice norms. However, these fair hearing norms have also been borrowed from and are a combination of the common law traditions which encompasses the US and UK law.

The common law origins of the three countries’ fair hearing norms have ensured that these reverenced certain principles irrespective of jurisdictional constraints. Thus, there is a stark similarity between them in terms of the post decisional hearings, the deciding body and the need to provide with adequate reasons in relation to the decision rendered. This, in turn, has ensured a consistency in terms of the importance given to the fair hearing norms and the application of administrative law in the three nations.  

Thus, it may be argued that the fair hearing norms in the three countries are marked by many similarities. However, the different nature of the jurisdictions under which the authority is usually conferred to the administrative bodies in the three nations is varied, thus leading to many differences as well. Therefore, it is important that while they respect the common law traditions that have been a part of their legal cultures, the judiciary of the three nations should render administrative decisions while taking into account the character of the rights of the person affected. This will allow the administrative law in these nations to progress as well as retain its core elements.


[1] The Constitution of the United States, 5th Amendment

[2] European Convention on Human Rights, 1953

[3] T. Koompans, ‘Natural Justice Rediviva? The Right to a fair hearing in European Law’ (1992) 39(1) NILR < : http://journals.cambridge.org/abstract_S0165070X00035440> accessed 7 May 2021

[4] Ohio Bell Tel. Co. v. Public Utils Commn, 301 U.S. 292 (1937)

[5] 253 U.S. 287 (1920)

[6] Human Rights Act, 1998

[7] H Davis, ‘The Right to a Fair Hearing’ (Bournemouth 2014) < http://eprints.bournemouth.ac.uk/31096/3/Chapter_7_Beginning_Human_Rights_Law_Author%27s_Text%20%281%29.pdf> accessed 13 May 2021

[8] D.D. Basu, Commentary on the Constitution of India (9th ed., vol 1, LexisNexis India 2014)

[9] Morgan v. United States, 304 U.S. 1 (1938)

[10] Cafeteria & Restaurant Workers v. McElroy367 U.S. 886 (1961)

[11] Ridge v. Baldwin [1964] AC 40

[12] Swati Jhaweri, ‘Right to a fair hearing in administrative law cases’, The Max Planck Encyclopedia of Comparative Constitutional Law (Oct 2016) < : https://ssrn.com/abstract=3175734> accessed 10 May 2021

[13] Ibid 5

[14] Maneka Gandhi v. Union of India, (1978) 1 SCC 248

[15] Nathaniel Nathanson, ‘The Right to Fair Hearing in Indian, English and American Administrative Law’ (1959) 4(1) JILI <https://www.jstor.org/stable/43949624> accessed 10 May 2021

[16] Ola Johan Settem, Applications of the Fair Hearing Norm in ECHR Article 6(1) Proceedings, (Springer International Publishing Switzerland 2016)

[17] Edward Rubin, ‘Due Process and the Administrative State’ (1984) 72(6) CLR < https://heinonline.org/HOL/LandingPage?handle=hein.journals/calr72&div=50&id=&page=> accessed 2 May 2021

[18] Lydia Kerketta, ‘Audi Alteram Partem: The right to a fair hearing’ (Legal Services India) <http://www.legalservicesindia.com/article/1860/Audi-Alterem-Partem-Right-to-fair-hearing.html> accessed 14 May 2021

[19] Ibid 5

[20] Ibid 9

[21] Ibid 12

[22] M.J. Sivani v. State of Karnataka, (1995) 6 SCC 289

[23] S A de Smith, ‘The Right to a Hearing in English Administrative Law’ (1955) 68 Harv L Rev 569

[24] Local Government Board v. Arlidge [1915] AC 120 [HL]

[25] Gullapalli Nageshwar Rao v. A.P. State Transport Corpn., 1959 Supp (1) SCR 319

[26] Ibid 6

[27] H.L. Trehan v. Union of India, (1989) 1 SCC 764

[28] I. P. Massey, Administrative Law (8th ed. Eastern Book Company, 2012)

[29] Ibid 5

[30] Ibid 25

[31] P. Leelakrishnan, Mini S. ‘Procedural Fairness in Administrative Decision Making’ (2017) 59(4) JILI < : https://www.jstor.org/stable/10.2307/26826613> accessed 6 May 2021

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The rise & rise of populist demagogues in democratic nations

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The term dictators & demagogues are used interchangeably in various contexts but there’s a difference, the former rules over a totalitarian state where government is able to exercise a complete influence over every aspect of citizen’s life whereas the latter is a “wannabe dictator” but due to the system of checks & balance in place they’re are not fully capable to create police states.

In 21st century these flamboyant  demagogues  have adjusted their personality & politics in such a way  that they successfully hide their intent & action in the shadows of democratic system so unlike Hitler’s Fascist regime or North Korea’s Communist dictatorship, it’s difficult to held them accountable because they’ll try to justify their hasty & unreasonable decision  in the name of Constitution & larger public good.

There are some common qualities shared by populist demagogues in  democratic countries that need to be checked in all seasons to protect the country & its people from potential benevolent dictators.

1.Compromised Constitutional Bodies

The rabble-rousers of the modern era have smartly learnt from their predecessors that to stay in power for eternity, it’s important to curb & limit the functions of Independent Institutions like Courts, Central Bank, Auditory Bodies, Investigation Agencies etc. For instance the President of Turkey Recep Erdogan has almost destroyed judicial independence in the country & with the recent news about the call of his political ally to shut down Turkey’s Constitutional Courts is not just alarming but also a cause of concern in a country where a record number of journalists are serving jail sentences under false charges & this decision if taken will not just compromise the press freedom which is already at its nadir in Turkey but it’ll also weaken the capacity of judicial system to guarantee the protection of people’s rights.

2.Unnecessary Focus on the revival of Glorious Past

Demagogues keep reminding us about the ancient prosperity & always pushing the narrative to portray their   country as the leading force , it can be done via 2 ways, either promote the soft power like culture, tradition, civilization & spirituality or use even nasty tricks to pull out the blinded nationalism that includes portraying one’s country as the leading colonizer, telling people about invaders & portray them as protector of native civilization or use race theory to create a class divide in society like Hitler did by invoking the Aryan identity that made some people into believing that they are superior to others.

By inciting this false hope of regaining the past glory & branding slogans like “Make America Great Again”, “For us, Hungary First”, “Abki bar, Modi Sarkar” they deceit & manipulate people into voting for their parties without doing any substantive work on the ground.

3.No respect for Dissent & Human Rights

Dissent or criticism of the leader & its establishment is part of a healthy Democratic society where people are fundamentally free to express their views regarding the government’s policies. While delivering a lecture on the topic,” The Hues That Make India: From Plurality to Pluralism,” the Supreme Court Justice DY Chandrachud noted that ” Descent is the safety valve of a democracy”  but sadly the Modern day Niro of India who ironically belongs to the same State where this lecture was being delivered has left no stone unturned to deliberately cut this valve into pieces.

Critics & Human Rights Activists are put behind bars for raising their voice against the atrocities & crime inflicted on tribals, minorities & other vulnerable sections of society. They are mercilessly beaten, tortured, thrashed & maimed in solitary confinements making no exceptions for maintaining basic human decency that is expected from the “World’s Largest Democracy”.

4. Polarisation for winning elections

The gruesome killing of George Floyd by White male police officer sparked a global outrage & protests against the racial inequality & hate crime that is at its highest level in more than a decade. People demanded accountability & change to stop the Institutionalised & Systemic racism against the people of color in the United States. Ex-president Trump instead of calling out & condemning white supremism  (terrorism) has defended & even embraced this far right radical ideology of hate.

As per the report by V-Dem, there’s an upsurge in political polarisation in India since 2014 when BJP seize the power at Centre & this is evident by frequent incidents of mob-lynching, riots & attacks on minorities especially muslims & Dalits in India. This report further states that Freedom of Religion has seen a considerable decline under the current regime. The reason behind these precipitous decline is the rise of Hindutva Politics which was long gone, forgotten & buried in the coffin but the BJP has called out the jinn of hatred to sway elections after elections at the cost of people who want to live a peaceful life in a non-hostile environment.

5.Violate established rules of Political Conduct

Politics was always a dirty business but populist leaders in most democracies have stooped to a new low & ruined it further. They never shy away from using homophobic & sexiest slurs or passing derogatory remarks against their counterparts in other parties.

Take for instance Brazilian President Bolsonaro, a nutcase who revokes popular prejudices in his ugly campaign rhetoric by passing many offensive & utterly distasteful comments against women, gays, environmentalists & minorities.

The rise of retro-macho politics has left no space for political sobriety & if unchecked, the tumor of hypermasculinity will not be just limited to hate speeches & jibes but translate into formidable action against humanity.

That’s how Romanian dictator Ceaușescu turned his political rhetoric into dystopian reality, under his dictatorship, birth control was banned, abortion was outlawed & fetus was declared the “property of society”, so women were tested for pregnancy & monitored to make sure that they give birth, and punished if they failed.

6. Refusal to accept migrants from Impoverished & war-torn countries

This is the hypocrisy of Western States who for decades have waged war, supported regime change, imposed Economic sanctions & trade barriers, sold weapons to militants in Middle-eastern & African countries finally when refugees & immigrants are arriving at the European borders from these destabilized countries where anarchy has bolstered civil war & complete chaos after covering an extremely dangerous route & taking enormous risks such as relying on people-smugglers or using flimsy boats to cross rough seas, they were detained & locked up under inhumane conditions in shipping containers in Hungary at whims & fancies of  Hungarian government headed by ultra-right wing Viktor Orbán but after the European Union Court ruling last year, Hungary has finally shut-down these illegal migrant transit zones situated on its border with Serbia, at the same time tightening rules which will effectively bar future migration prospects in EU member states.

7. Climate Change Deniers

Climate Change is the biggest threat to human existence in the 21st Century. Earth’s Climate is now changing faster than at any point in modern civilization, primarily as the result of human activities. It needs to be understood that Climate Change is not just a science issue but a policy issue as well. In most of the countries where demagogues are in-charge the policy seems to be more destructive, anti-science & discredit the scientific studies that show that effects of Climate Change are horrific & destructive for the Planet.

The environmental policies of Bolsonaro in Brazil have put the Amazon Rainforest on the verge of extinction. Regarded as the “lungs of the Earth”, the Amazon acts as a giant carbon sink & is also responsible for driving rain patterns across South America & Africa. Leaked documents revealed that Bolsonaro has cynical plans for Amazon Rainforest that includes hydroelectric plants, construction of bridges on Amazon river & a proposed highway through the dense forest to integrate Amazon basin with the rest of the National territory.

Under pressure from the Biden Government, Bolsonaro is now promising to make Brazil Carbon neutral by 2050 but his Environmental minister has asserted that his country is ready to cut 40 percent of deforestation in Amazon Forest only if the International Community will provide $1Billion as assistance. Though It is highly unlikely that the Brazilian government will take any steps against the influential farming lobby that played an important role in the victory of Bolsonaro in 2018 & to whom he has promised to dismantle existing environmental protections to make way for agricultural land expansion and intensified production.

The rise of populist leaders in  democratic countries is not sudden, before seizing power they boastfully promise to set their country free from corruption, crime & socio-economic inequality but after winning election they shift their goal post to achieve sinister objectives. Electoral political system in a democracy needs an urgent overhaul to include an educated perspective rather than simply representing the

will of majority which is no less than tyranny & this could only happen if people(voters) are aware about fascism among themselves & what  does it take for a normal country to become a Nazi State that had turned itself on the path of ravage & destruction. The importance of self realisation & tumultuous past is aptly described in a quote by Ernest Hemingway in his classic book, For whom the Bell tolls “But are there not many fascists in your country?’ There are many who do not know they are fascists but will find it out when the time comes“.

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

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The whole world, owing to coronavirus pandemic, is enveloped in the darkness. It has wreaked havoc on almost all the aspect of human lives. The educational institutions, theaters and cinemas all have been shuttered. Public gatherings, to maintain the social distancing, have been firmly discouraged. Further, the pandemic has significantly modified the media and entertainment consumption patterns. Social lives ventured into digital environment as a result of people being cramped to their homes. People have switched to several sources of entertainment from the comfort of their own homes and over-the-top (“OTT”) platforms have proven to be a major source of entertainment.

OTT platforms have grown exponentially and taken over the industry. OTT platforms expedites streaming of video content over the web. Several OTT platforms such as Netflix, Amazon, Disney Hotstar, Disney+, Apple TV+, Hulu, etc., have primarily ousted the traditional television service. The notification issued by the Central Government of India aimed at getting online media platforms and content on OTT platforms within the jurisdiction of the Ministry of Information and Broadcasting has been making the rounds in recent times. The cabinet Secretariat, on November 9, 2020, released a notification amending the Government of India (Allocation of Business) Rules, 1961. It has incorporated two new entries to the second schedule of the Rules namely Films and Audio-visual programmes provided by online service provider as well as News and Current Affairs. This action is attributed to the fact that there is large amount of an unrestricted content available on the web as well as lack of an adequate regulatory regime in place to protect its users.

Universal self-Regulation code

The Internet and Mobile Association of India (IAMAI) had come up with a Universal self-Regulation code (code) to administer the content available on OTT platforms. The code was primarily adopted by the fifteen OTT platforms namely zee 5, Viacom 18, Disney Hotstar, Amazon Prime Video, Netflix, MX Player, Jio Cinema, Eros Now, Alt Balaji, Arre, HoiChoi, Hungama, Shemaroo, Discovery Plus and Flickstree. SonyLIV and Lionsgate too have recently signed the code. It was manifestly stated in the code that The Information Technology Act, 2000 (IT Act) is the main governing framework when it comes to online content. The values enshrined in Article 19 of India’s Constitution, namely the Right to Freedom of Speech and Expression, direct the internet and material on the internet. A policy for the digital content sector has to be drafted in line with Article 19 of the Indian Constitution i.e. the Right to Freedom of Speech and Expression, and any constraints on the aforesaid right should be fall within the purview of constitutional restrictions set forth in Article 19(2) of the India’s Constitution.

Further, the code had delineated a mechanism pertaining to (i) Age Classification (the code had particularized the certain categories for standardized age classification namely All ages, 7+, 13+, 16+ and 18+) (ii) Appropriate content specification ( a content descriptor appropriate to each piece of content that demonstrates and tells the viewer about the essence of the content while also advising on viewer discretion) and (iii) Access control Tools( to regulate access to content, signatories to the Code may implement technological tools and measures for access control i.e. PIN/Password.) The code had also established the perspicuous grievance redressal and escalation process to lodge complaint regarding non-adherence to specified guidelines. The MIB, however, has repudiated the proposed code since it did not explicitly categorize the prohibited content. Further, there is no independent third-party oversight and a transparent code of ethics. The MIB instructed IAMAI to seek guidance from the Broadcasting Content Complaints Council (BCCC) and the News Broadcasting Standards Authority (NBSA) self-regulatory frameworks.

A public interest litigation was consolidated in October, 2018, before the hon’ble Delhi High court by Justice For Rights Foundation to draught certain guidelines for modulating the content available on OTT platforms. The MIB while filing the counter affidavit stated that digital platforms are not required to procure a license from them to exhibit their content and the same is not controlled by them. The Ministry of Electronics and Information Technology (MEITY) has also mentioned that they do not oversee internet content and there exists no mechanism for monitoring or licensing an agency or establishment that posts content on the internet. Nevertheless, it was claimed that the provisions concerning IT are applicable, and concerned legislative authority having jurisdiction under the aforesaid Act is authorized to take action using the power granted to them under section 69 of the Act which involves directives for interception, surveillance, or data encryption. Further, under Section 67 of the Act there are penalties pertaining to posting or disseminating obscene information in any digital form. Accordingly, the court while dismissing the petition opined that it cannot grant a mandamus for the creation of regulations when the IT Act already contains stringent restrictions and currently the foregoing petition is pending in the hon’ble supreme court.

Positions of the law in regards to film screenings

A film must be certified by the Central Board of Film Certification before it can be displayed or distributed in cinemas or on satellite, and the content is constrained by existing laws. The CBFC was established by the Cinematograph Act of 1952. When it was established, it was designated as the Board of Film Censors. It was amended in 1959 to give it the authority to certify a picture for mass consumption. The Cinematograph Act of 1952, the Cable Television Networks (Regulation) Act of 1995, and the Cable Television Networks Rules of 1994 are among the laws that govern the industry. However, there is no such particular legislation for regulating material on OTT platforms. The government by virtue of Article 19(2) of Indian constitution can impose restrictions on freedom of speech and expressions in the interest of sovereignty and integrity of India, security of state, friendly relations with foreign countries, public order, decency or morality and so on. Consequently, broadcasted content has often been a restricted matter. In K.A. Abbas v. Union of India and Another[1], the constitutionality of censorship was initially challenged. The hon’ble supreme court has upheld the constitutionality of censorship under Article 19(2) of the India’s constitution and stated that films must be viewed differently from any kind of art and expressions because a motion picture can elicit more intense emotional response than any other product of Art. However, such censorship should not be exercised to imposed an undue restriction on freedom of speech and expression.

The constitutionality of censorship was also disputed in S. Rangarajan v. P. Jagjivan Ram [2]wherein the hon’ble supreme court has held that the board’s criterion for appraising the films must be that of an ordinary man with common sense and wisdom rather than that of a hypersensitive mind. The Moral values ought not to be compromised in the realm of any social change. The concept of “Dharam” should not be disrupted by the immoral norms or standards. However, it does not suggest that censors must embrace a conservative perspective. They should be resilient to social change and go with the topical environment. The film is the most legitimate and significant medium for addressing topics of public concern. The producer has the right to broadcast his own message, which others may or may not concur with. The state, regardless of how hostile to its policies, cannot suppress open debate and expression. The democracy is basically a government by the people based on open debate. The democratic form of administration necessitates citizens’ active and informed engagement in the societal issue.

Furthermore in, Phantom Films Pvt. Ltd. And Anr. V. The Central Board of Certification[3], it was said that we are governed in a democratic manner. We can’t expect everyone’s head and intellect to be the same in a democracy. Freedom to think and act in a different way is at the heart of democracy. The beauty of democracy is the diversity of viewpoints, ideas, and manifestations. It’s unrealistic to expect everyone to exhibit themselves in the same way. In the film business, new blood is being infused. This new blood is revved up and eager to get their feet wet in the industry. The film business and the general public have embraced such new blood. Their effort has been recognized and praised by the government. These works are predicated on a certain way of thinking that is unique to them. They have their own opinions and ideas on how the film business should operate, as well as how the medium altogether must be managed. Profanity, obscenity, and depravity do not shock human emotions. Such situations and discussions must be seen in their entirety. The narrative must be perused in its totality and thought upon. It is not appropriate to choose a few phrases, lines, conversations, or situations and venture into the board’s resolution. Certainly, the state, and notably the Central Board of Film Certification, cannot attempt to sculpt and dominate public opinion under the guise of purported public interest or audience preference. That would be terrible, as it would hit at the heart of democracy and civil liberty, which are held in such high regard by everybody. The goals of film certification, consequently, cannot be achieved by disregarding the Constitutionally guaranteed right or by fully undermining and disappointing it. A movie has to be watched on its own and judged accordingly. The plot, subject, background, and location in which it is created, the message it aims to express, and the entertainment, among other things, would all have to be assessed using section 5B’s standards.

Should OTT platforms be governed by a code of self-regulation?

Self-regulation is presently the only option available to such platforms in order to maintain the ability to broadcast material without undue censorship. Because unreasonable restriction would impede the creative flexibility of OTT platforms. It will assist platforms in conducting themselves in an ethical and fair manner while also safeguarding the interests of their users. It would protect content producers’ artistic freedom by promoting creativity and upholding an individual’s right to free speech and expression. The general public desires to view the content in its original and untainted state. They strive to understand artwork in its most primitive sense. The fundamental role of government agency is to maintain the fair field, not to inhibit innovation and ingenuity by placing limitations in a tech industry.

Self-regulators’ competence allows them to adjust their regulations more quickly than government agencies in reaction to technological advancement. More significantly, independent of any technological change, the self-regulator is better equipped to decide when a rule should be modified to improve compliance. Self-regulation has the ability to make compliance more appealing. It develops regulations based on an expert’s level of understanding, customized to the specific sector. These rules are viewed by regulated entities as more “reasonable” from the inception owing to their involvement[4].

Conclusion

The MIB by virtue of the amendment has now can regulate and draught policies regarding digital media and online streaming on OTT platforms. However, such governmental intervention can considerably jeopardize the constitutional right to freedom of speech and expression. The suppression of freedom of speech and expression is what censorships is all about. The freedom of speech and expression suggests that right to manifest one’s thought via words of mouth, writing, picture and any other means. The freedom of speech is one of the most well-known and fiercely protected civil rights against government encroachment. In modern democratic societies, it is generally considered as an essential notion. Every citizen of a democratic nation has the freedom to express his or her opinions on various issues. Thousands of viewpoints are disseminated around the country via various channels. A film director has the freedom to manifest himself and gives effect to his thoughts, even though others may not concur with him. An exhibition of films as well as documentaries cannot be prohibited for purely speculative reasons since prohibiting motion pictures is tantamount to suppressing the right to freedom of expression and speech. Restrictions upon Individual’s freedom of speech and expression must only be permitted if they are required to avert severe harm from being perpetrated. It is critical to have a healthy and extensive amount of free expression in order to assert a thriving and well- functioning democracy. Democracy, otherwise, is obsolete and akin to a totalitarian dictatorship[5]. It should be up to the public to determine what they want to see and what they don’t want to watch. Thus, the cornerstone to safeguarding artistic freedom is a sustainable self-governance paradigm.


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

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

[3] Phantom Films Pvt. Ltd. And Anr. V. The Central Board of Certification 2016 S.C.C. online Bom 3862: (2016) 4 AIR Bom R 593: AIR 2017 (NOC 62) 29

[4] Id. at 13

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

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

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International Law

What Determines Taliban Government’s Legitimacy?

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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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