Scaling The Diameter Of Censorship Legal guidelines In India And The Proposed Amendments To The IT Guidelines, 2021
Censorship ends up becoming a tool for moral policing that controls other people’s lives rather than concerning itself with larger public issues.
The term ‘censorship’ in Indian law has often led to a fire and ice type debate amongst laymen, politicians, thinkers, organizations and various other groups. Censorship is proclaimed to be a tool that is placed to keep a fair check on what comes into the public domain and how this information or data fulfills certain commonly acceptable standards to maintain harmony, peace and social order.
However, censorship has connotations, grounds of operation, and room for interpretation that goes much beyond this commonly assumed understanding and is subjective in its application and observation. This makes censorship legislation prone to misuse.1 Particularly in India, censorship laws take everything that comes in public domain – advertisements, theatre, films, series, music, speeches, reports, debates, magazines, newspapers, plays, any form of art, dance, literature, written, documentary or oral works – in their sweep.
Thus, there have been several instances when speeches and other forms of public expression have been removed from the public domain on account of being outrageous, indecent, against morality, public order or for hurting religious sentiments – parameters which have no specific definitions or proper contours.2 Such instances seem to be growing in their ambition, ambit, and number and are seen as a major threat to freedom of speech and expression.
How Does Censorship Work In India?
‘Censorship’ generally means restraining some material (speech, words, writing etc.) from coming to a public domain or restraining this material from being published on the grounds of being objectionable and/or against general interest. This is done by the concerned authority or a designated body. Censorship is exercised in India directly and indirectly via different legislations and authorities, in different domains like Indian Penal Code, Code of Criminal Procedure, Central Board of Film Certification, Press Council of India, Cinematograph Act, 1952, Cable Television Act etc.
Section 95 of the Cr.P.C allows forfeiture of certain content/ publications- any newspaper, or book, or any document, wherever printed, appears to the State Government to contain any matter- the publication of which is punishable (under S.124A/S.153A/S.153B/S.292/S.293/295A of Indian Penal Code) by the State Government via an official notification within the territory. This would allow a magistrate to issue warrants to search for ‘objectionable’ publications.
The Central Bureau of Film Certification (CBFC) is a statutory body established by and operational under The Cinematography Act, 1952, which regulates the content of films that are brought into the public domain. The CBFC follows a system of prior certification of films, and the broadcasters are bound by the guidelines under the ‘Programme Code’and ‘Advertisement Code’ to follow the certification provided. It provides for categorization in the following four categories i.e.
‘U’- connotes the category of unrestricted exhibition.
‘UA’- connotes category of unrestricted exhibition except children below the age
group of 12 years of age.
‘A’- connotes the category of exhibition permitted and restricted to adults.
‘S’- connotes the category of films restricted to specified class of people only.
Various amendments and improvements were suggested by The Shyam Bengal Committee Report2 and The Mudgal Committee Report3 which haven’t been applied yet and the rest are still on the table.
The Press Council of India, a statutory and quasi-judicial body -established under the Press Council Act, 1978 acts as the self-regulatory body for the press and regulates what comes to the media domain. This body emphasizes the need for media persons and journalists to self-regulate, and acts as a watch dog for media content at large to assess if it goes against press ethics and the public interest. Section 14 and 15 of the Act provide for the censure powers and the general powers of The Press Council of India. For the purpose of performing its functions or holding any inquiry under this Act, the Council shall have the same powers throughout India as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908- as provided for in section 15 of the act. If a complaint is made to the council or otherwise on its own or on information received, the Council has reason to believe that a newspaper or news agency has offended against the standards of journalistic ethics or public taste or that an editor or a working journalist has committed any professional misconduct, the Council may, after giving the newspaper, or news agency, the editor or journalist concerned an opportunity of being heard, hold an inquiry in such manner as may be provided by the regulations made under this Act and, if it is satisfied that it is necessary to do, it may, for reasons to be recorded in writing, warn, admonish or censure the newspaper, the news agency, the editor or the journalist. The decisions of the council are binding and final.4
Even if there may not be an official body authorized to censor the press, this is carried out in a nefarious manner, often through slapping cases of sedition and defamation against journalists. For example, interim injunction orders were passed against over 40 media houses by Bangalore’s city civil court, restraining them from publishing reports and news stories and statements that were claimed to be defamatory against the BJP lawyer and candidate Tejaswi Surya. However, the order was subsequently overturned by the Karnataka High Court on account of it being against freedom of speech and unfairly disallowing the public from accessing information about a contesting political candidate.
The Cable Television Networks Act also filters the kind of content that can be broadcasted.5 For keeping a track over cable operators, the act mandates a compulsory registration for cable operators. It also lays down provisions to regulate content to be broadcasted by the cable operator, following this it mandates the certification of film by CBFC6 under the category-‘U’ (i.e. Unrestricted-public-exhibition) before it is transmitted or broadcasted via cable television irrespective of the film being produced in India or abroad.
This Act confers ample power to the government to ban cable operators, channels or certain programs that violate the given program code or guidelines as prescribed by the rules made under the act- ‘Cable Television Networks Rules’, – by the virtue of section 5 and section 6 of the act . It has thus been misused to subdue free speech and expression, and consequently eroding the right to dissent. The direction to NDTV to go off air for a day for its coverage of the Pathankot attack is an example of this.7 At times the Act is also used in response to protests by certain sections of society. The process of filtering programmes remains contentious owing to the fact that it is driven by the subjectivity of the majority in authority.
Social Media Platforms And The New IT Rules, 2021:
Given its significant rate of growth, social media censorship has been a growing point of concern in India as till recent times, it was not under the direct supervision of any government authority or direct and specific regulation thus far. At present, the Information and Technology Act, 2000 regulates social media usage, and Sections 67A, 67B, 67C and 69A, in particular, include the specific regulatory clauses. Even as Section 69A of the ACT, confers upon the Central Government the power to issue directions to block public access of any information on public platforms – an example being, the blocking of over a 100 applications by the government for purportedly being prejudicial to the sovereignty and integrity of India, defence of India, security of India and against India’s public order.
However, the recently notified IT (Intermediary Guidelines & Digital Media Ethics Code) Rules, 2021 that replaced the rules of 2011 have changed things. These were preceded by the amendments to the ‘Allocation of Business Rules’ under the IT Act, 2000 to bring films, audio-visual programmes, news, current affairs content, and digital and online media including OTT (Over The Top) platforms like Amazon, Netflix, and Hotstar under the purview of Ministry of Information & Broadcasting (I&B), Government of India.
The IT (Intermediary Guidelines & Digital Media Ethics Code) Rules, 2021 put in place after this amendment include new compliance and redressal mechanisms for social Media, OTT, digital news and even messaging apps (like WhatsApp and Viber).8 Some salient features of these guidelines include:
- Digital and online media that were earlier self-regulated have now been brought within the arc of the I&B Ministry with the goal of equalizing the playing field for traditional media platforms.
- Social media intermediaries have been classified as per the number of users. These intermediaries are to follow the ‘Due Diligence’ rule and are protected to that extent. Mandatory provisions of grievance redressal have also been put in place,- under which a grievance officer is to be compulsorily appointed to resolve complaints within 15 days. The Grievance officer can be complained of any complaint related to the code of ethics or to raise any objection in context of any material available on the platform. Following this new mechanism, a monthly compliance report is also to be filed.
- Social media platforms have to actively and diligently censor content published on their platforms or otherwise they would lend themselves open to liability –off the ‘safe harbor protection’. The rules place an obligation on social media platforms and messaging apps to be able to identify the ‘first originator’ of the information.10
- The rules also provide for an obligation and call for removal of content by the intermediary on receiving proper orders from the concerned authority to not act as a host platform to certain types of content.
- As for digital news platforms, they continue to fall within the ambit of the Press Council of India, and the Cable TV Networks Act, where a self-regulatory body is to oversee the proper adherence and obligation to the prescribed ‘Code of Ethics’. However, this is now followed by a third level of control – where the I&B Ministry is to form panel for overall oversight.
- As for OTT Platforms, these are scrutinized on the basis of the newly introduced, 5 age-based categories, which divide and inform the viewers about the content. This would work as proper and stringent ‘age verification mechanism’ – for effective application of the categorization made.
All these new rules have added a new dimension to the existing framework of censorship in India.
This practical application of the censorship legislation can end up becoming a tool of moral policing that controls other people’s lives rather than concerning itself with larger public issues. The wide-ranging powers given to the regulatory body under the new rules, which is composed of bureaucrats, also runs the risk of discretionary political control.
The circumferences of morality, taste, and distaste differ widely in India. Hence, this level of intense censorship is far off-course from the constitutional mandate of free speech and expression as guaranteed to all Indian citizens (subject to certain reasonable restrictions). The challenge lies in determining the limits of reasonableness in the application of these restrictions.
New Proposed Amendments To The IT Rules Of 2021:
As a count, four amendments have been chalked in the draft proposal, for effective enforcement and effect of the IT Rules, 2021- already in place. The authorities claim that these proposed amendments would fill in the lacunas of IT Rules, already in force and seek to provide for an increased accountability of the intermediaries:
- The amendment seeks to insert new clauses i.e. Clause 3(1)(a) and 3(1)(b) in the rules – that would expressly require the intermediaries to respect the constitutional rights of the users of the platform.
- As per the existing rules of 2021- the intermediaries’ grievance officer are required to address complaints within a period of 15 days. However, as per the proposed amendment – certain specified complaints regarding removal of content from platform in question, has to be addressed in 72 hours.
Hence the amendment seeks to tighten the noose over the questionable content and prevent its rampant spread or to remarkably reduce its publicity once the content is flagged, which was as such possible during the existing period of 15 days.
- Proposal to establish a ‘Grievance Appellate Committee’- in user’s interest of fair redressal- for appeal by the aggrieved against the orders of the Grievance Officers.
- The appellate committee proposed to be established will have power to overrule the decision taken by the concerned grievance officer.
The proposed appellate authority would be government appointed committee, in functioning. The appellate authority by virtue of its power will have an upper hand and decisive call over the regulation and decisions of grievance officers of the intermediaries. The appellate committee, duly appointed is proposed under the draft to have chairperson and other members, as the central government would officially notify. As for the present status of authority, the grievance officer takes a decision over any content in dispute or concerns flagged over the platform. As for further recourse, the aggrieved has to directly approach the jurisdictional courts to contest the decision of the grievance officer. The amendments have been floated to fill in the gaps and to protect the fundamental rights of the users. There have been instances of lapses in addressing the grievance by the grievance officer under IT Rules of 2021 or even the fairness of decision was under question including the lack of opportunity of being heard, to the user or content creator before removal of content or blocking of the access- against the cause or the action.
However, the concern looms over with clouds denser than before, as the critics claim that this would bring the content under the direct scrutiny of the government instead. This would grant the government an upper hand over the regulation of the platform and content and a deciding veto over the decisions of the grievance officer. There is a lack of legislative backing to these authorities, obligations imposed and appellate machinery sought to be set-up, as the rules are rather only a form of subordinate legislation to the IT Act and is seen by the reviewers as an ultra-vires overreach by the rules that rather go beyond the ambit of the act. This would bring content under the direct and overruling scrutiny of the ruling government and would be rather guided by the political and ideological inclinations of the government.
There is thus a need for a defined understanding of censorship, which can help reduce the subjectivity attached to it. These laws cannot be overly sensitive and should balance the equation between maintaining objective standards of broadcasting and information dissemination on the one hand and maintaining the fluidity of art, expression, free speech and expressional creativity on the other. The line between the two is thin- and therein lies the challenge. There are chunks of cases pending in different courts across the country, challenging the validity of the IT Rules 2021 and the mandate of cross cutting the encryption of content or messages of the user. To this Supreme Court has recently stayed all these cases and has transferred the cases to itself and the rules and incidental matters are pending before the Supreme Court.11
The author is an Advocate at Delhi and views are personal