17 May 2019

#FOEIndiaSeries | 3. Legislative and Other Inputs

Free Speech in India

This is one of 14 articles (available via this page) through which I hope to share a sense of free speech and content law in India.

Wherever possible, I've tried to avoid mention of matters I've been involved in myself. I've also tried to ensure that the series is accessible to non-lawyers.

The terms ‘child pornography’ and 'revenge porn' have been used simply because of how common they are, both in popular discourse and occasionally at law, even though neither term is accurate. 'Child porn' refers to indecent images of children and, where real children feature, is evidence of child abuse in and of itself. 'Revenge porn' generally refers to the non-consensual release of explicit imagery of a woman by a former partner of hers. It, too, is a manifestation of abuse, and is far more an expression of power than an expression of pornography.

Of course, none of the content of these articles is professional advice and it should not be relied on for any purpose. It is tinged with personal opinion, may not be accurate, and is incomplete.  

Posts in the Series

Part I.    The Foundations of the Law

1.    The Parameters of Indian Discourse    
2.    The Backbone of the Law    
3.    Legislative and Other Input

Part II. Regulating the Substance of Speech    

4.    Creative Content and Trade    
5.    Reputation and Honour    
6.    Keeping the State Functional    
7.    Maintaining Law in a Plural State    
8.    Women’s Existence in Patriarchy
9.    Sexual Abuse and Reportage
10.    Privacy and Rights-Based Legislation    
11.    Explicit Content: Choice, Consent and Coercion    
12.    State Paternalism and Public Interest

Part III.  The Processes of the Law    

13.    Keeping Track of Others’ Content
14.    The Processes of Regulation


Part 1. The Foundations of the Law


3. Legislative and Other Inputs


All laws may be backed by legal principle and by overarching documents such as the Constitution of a country. However, those high-level theories and expressions of the law are not necessarily what individuals dealing with the law would encounter in their day-to-day lives. Instead, they would encounter a variety of statutory instruments, and rules drafted by ministries. They would also come across interpretations of the law endorsed by courts through their judgments, which have the force of law themselves.

In a country with a federal structure like India, statutory instruments are of two kinds: those passed by the legislatures of individual states, and those which are passed by the legislature of the country as a whole or Parliament. In the most basic terms, State statutes (or Acts, as they are called) apply within the limited territory of the State in which they are passed, while Acts of Parliament apply to the entire country possibly with some exceptions.

When it comes to Acts of Parliament, apart from all statutes not automatically applying to the entire country, there are also cases where statutes can apply not only within the country but also, potentially, to acts which take place abroad. Such statutes with extra-territorial applicability can become particularly important with reference to online content and conduct since a great deal of activity associated with content may take place beyond the territorial borders of the country even if the content is visible in India. Alternatively, conduct in respect of online content may have implications for people accessing specific websites or using specific services in India.

The enforcement of statutes with extra-territorial application can be a nightmare if those who engage in questionable conduct do so without having anything at all in the way of a presence in India themselves, but then again, enforcement is another matter altogether and nothing prevents the substantive provisions of statutes from being more optimistic than realistic. Substantive law lays down rights and obligations, privileges, and wrongs without necessarily getting into the nitty-gritty of how any of them would be protected or enforced.

In other words, as far as substantive law is concerned, some statutes with the possibility of extra-territorial application exist, and with them, in some cases, comes the possibility of addressing the commission or omission of acts which would have been illegal if they had been committed in India. Substantive law does not delve into the question of how the application of extra-territorial law would be achieved — that is a matter for procedural law and law enforcement, along with the judiciary.

Statutes are still often high-level documents, and although they may contain both substantive and procedural provisions, it may be left to Rules which are issued under them to lay out the details of how to ensure that their provisions are operable and operational. These Rules form what is known as ‘subordinate legislation’ and, just as statutes must conform to the Constitution, Rules must be in consonance with their ‘parent’ Acts. If they violate the provisions of the statutes which they are issued under, they are invalid.

Many of the laws which govern free speech India in India are, in fact, found in subordinate legislation. Many of them echo each other, and an indefensibly large fraction of them tend to be vague. To take just one example: regulations do such things as prohibit content which offends good taste and decency. And, of course, it is impossible for anyone to predict what would be considered to offend good taste and decency by the powers that be with any degree of certainty. The provisions are therefore susceptible to being interpreted in a manner which seems appropriate to the person interpreting them without necessarily being supported by objective, sharable criteria. And, because of the manner in which the law is structured, such interpretations could be entirely legal even if they were to seem repugnant to one as a result of one’s personal or political leanings.

Content which showed a woman enjoying a sexually-uninhibited lifestyle could seem like nothing more than what should be a socially-acceptable portrayal of a woman’s life to some people. To others, however, if the reactions one comes across are to believed, it is a portrayal of the Apocalypse.

It is possible to make an educated guess about how specific content might be perceived where there exist no objective criteria to rely on, but such guesses rely on being entrenched in broader Indian culture oneself and being familiar with what Indian societal responses could be. Unfortunately, and entirely unsurprisingly, this is not a fool-proof method of assessing the potential permissibility of the publication of specific content since, as individuals, all of us live in micro-cultures with our exposure to socio-political ecosystems beyond our own being limited. As a result, our guesses, educated though they might be, are prone to at least occasionally being widely off the mark especially considering how diverse the country is.

It’s not all doom and gloom though: amongst the restrictions on content — or free speech — are those which are relatively clear. For example, publishing content which infringes the copyright of another person is illegal. There are a large number of grey areas here too which one would stumble across if one were to explore precisely what constitutes infringement but, even so, it would be hard to argue that the law is not clear at least in its fundamentals. For example, copying and publishing the protected content of another person in its entirety, verbatim in the case of a book, or, possibly, frame-by-frame in the case of a film, without the permission of the copyright owner is unarguably illegal.

Where there exist grey areas (which are obviously not restricted to copyright law), it is generally left to the courts to sort out the mess and decide one way or the other if disputes arise and pre-trial out-of-court settlements cannot be reached. It isn’t at all uncommon for legal notices to be sent out quite randomly upon the publication of content which people find offensive for reasons best known to themselves, and for demands to be made for the payment of large amounts of money in damages. One hundred crore Indian Rupees is often the go-to figure. What does one say in response to claim which is, in essence: “Your programme offends good taste and decency by portraying a woman in fashionable clothes,” to take a hypothetical example.

It isn’t at all necessary that for a claim to be made, it be backed by law, or anything at all even remotely resembling a legal basis. Continuing with the same example: absolutely no law or regulation anywhere in India says that a woman cannot be legally portrayed wearing fashionable clothes. That said, the existence of people who associate fashionable attire with moral decadence, the loss of dignity, and all-round denigration is far from the realm of the impossible. It would also take little for them to make their feelings known through a letter, perhaps in the form of a LEGAL NOTICE (all Caps, of course), claiming that a fashionable portrayal is illegal and demanding some form of recompense likely along with the withdrawal of the content and, perhaps, an apology.

Communications which belong to this genre are reasonably easy to counter. The publishers of content and their lawyers invariably have good reason to believe that there is no legal basis at all for the claim, and they can quite easily send a response across to the claimant after which it is more likely than not that they will never hear from the claimant again. Some claimants, however, may be particularly enthusiastic: instead of merely sending a communication, whether in the form of a legal notice or otherwise, they may decide of initiate legal proceedings in a court of law.

There is absolutely no way whatsoever in which any publisher can contain the filing of a plaint for any reason. They may be able to argue against the matter being allowed to proceed especially if the claim is particularly outlandish, but they cannot ensure that there are no claims made in the first place, and they cannot easily simply choose to ignore claims which are made in court. And so, when legal proceedings are initiated, it is almost impossible for publishers not to wind up becoming embroiled in them.

And here’s the kicker: publishers, in this context, are not restricted to publishers who operate on a commercial scale, make hundreds of copies of works, and perhaps sell or broadcast them, and have deep pockets. On the contrary, a publisher could be anyone who communicates including an individual who publishes a post on a social media website. If there are criminal implications, the quantum of punishment may differ depending on whether or not the publisher of illegal content is operating on a commercial scale. However, the substantive provisions which determine whether or not speech itself is illegal don’t necessarily consider who the person accused of violating the law is doing. “I only said it on Facebook,” will not negate an allegation of defamation. One doesn’t have to communicate defamatory content in a newspaper or the like to have it be legally problematic, or be a large corporation before one can be held legally accountable.

As with all things legal, there are exceptions to the general rule that it doesn’t matter who is accused of violating the content and speech laws or what their motivations are. There are situations where the intentions of people matter a great deal — a person who engaged in what would otherwise be copyright infringement for an educational purpose or to report the news, for example, may not necessarily be considered to have violated the law. The 1957 Copyright Act itself, supported by case law, codifies this exception to infringement.

Statutes lay down what could be considered to be general though reasonably inflexible guidelines. It is up to courts to interpret them, and to apply them — or, if need be, to make them applicable — to the specific matters which arise. The court which hears a particular matter will generally depend on what kind of claim is made, where the offence took place, and how much money is involved. To cut a very long story short: a criminal matter will head to a criminal court, a civil dispute to a civil court, a writ petition (which is the form much Public Interest Litigation takes) will usually wind up in a High Court. Further, factors such as the nature of the wrong, the value of the property involved and the quantum of damages claimed in a civil matter determine whether a court may hear a matter or, in legal terms, if the court has the pecuniary jurisdiction to do so.

Pecuniary and subject matter jurisdiction, are not the only kinds of jurisdiction which come into play whilst deciding where legal proceedings should be initiated; courts also have territorial jurisdiction.

Each State has a wide array of courts and tribunals — the courts in each State usually have a high court at their helm, and atop the pyramid, at the helm of all courts in the country, is the Supreme Court of India. The codes of procedure determine whether a specific court has territorial jurisdiction to hear a matter, and these codes are sometimes supplemented by provisions in disparate statutory instruments. The determination is based on a number of factors such as where the alleged wrong or offence is claimed to have place, where the person initiating proceedings resides, where the persons involved carry out business, or where property is located. The result is that there are often several places where a case may legitimately be filed. It also means that persons who anticipate having legal proceedings initiated against themselves cannot always easily do such things as file caveats in courts to keep themselves abreast of possible developments. For one thing, caveats expire within a few months, and, for another, it simply isn’t practical to file caveats in every possible court in which proceedings may be initiated since it wouldn’t be unusual to come across situations where proceedings could, for all practical purposes, be initiated in a court anywhere in the country.

That’s an introduction to issues of jurisdiction which compresses several thousand words worth of legalese on civil and criminal procedure into two paragraphs without clear delineation, and it is obviously intended to do nothing beyond indicate that the authors of speech and the publishers of content can be left in an extremely vulnerable position should anyone decide to ‘go after’ them for having published specific content. While it is easy for the armchair commentary to assail them, fast and furious, suggesting that they should ‘stand up for free speech’ when they are asked to take down content by people who may have no legal claim worth mentioning to make, it is worth remembering that these claimants can, even without a legal basis, make life very difficult for both authors and publishers, and leave them having to cope with not just a great deal of stress but also, possibly, astronomical legal bills.

Once the courts become involved, it can take years for matters to reach a conclusion. The decisions of higher courts are binding on the courts which are subordinate to them, and form a body of law called case law. The courts within a State are generally obliged to follow the law as it is interpreted by the High Court to which they are subordinate, although High Courts themselves are under no obligation to agree with each other.

It is entirely possible to encounter a situation where two different High Courts come to diametrically opposite decisions relating to one point of law. If there is later a Supreme Court ruling on the same point of law, all high courts would have to follow that ruling although, till that happened, they could all follow their own interpretations of law. This creates some amount of uncertainty which is further compounded by the fact that the order of any High Court can generally be enforced throughout the country.

Case law, too, is often only indicative of what might happen in a certain matter. One of the greatest dangers while dealing with case law is to look at the factual matrix in one case, think that it is similar to the facts one is dealing with in another case, and assume that a court would come to a similar conclusion in one’s own case. There are no guarantees, however, that a court would view the two factual matrices as being similar. A court’s decision in a previously-adjudicated matter could be limited to the facts of that particular case and go no further, thus providing no assistance to someone who later sought to rely on its judgment.

In consequence of all of this, a situation arises where there is no dearth of laws which govern speech — natural, international, Constitutional, statutory, and subordinate, amongst others. But despite there being a virtual deluge of legal provisions, there is still a great deal of ambiguity about what it is that the law actually says and precisely what speech would be considered illegal. And it is in such waters that are far from calm that the right to free speech is exercised. It is no surprise at all that navigating these waters is fraught with danger at worst and uncertainty at best

(This post is by Nandita Saikia and was first published at IN Content Law.)

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