19 July 2019

#FOEIndiaSeries | 12. State Paternalism and Public Interest

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. Part I of this series considers the socio-legal basis of free speech law in India, Part II explores what regulation, both legal and social, says and, in some cases, what it should perhaps say while Part III, finally, looks at the processes through which free speech regulation is implemented 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 Mechanics of Regulation


Part II. Regulating the Substance of Speech



12. State Paternalism and Public Interest

How the public interest may be secured without unduly and unfairly interfering with individual choice is always a fraught issue. Indian law, however, seems to manage to deal with it without an ounce of hesitation or self-awareness, let alone self-reflection, by ignoring it altogether. if it were personified, in some respects, the law would probably be the patriarch who was entirely convinced that he not only knows what was best for his family but also for each one of its members, and who sincerely believes that that everything he does furthers the interests of his family and, with that being the case, that each of his actions is also necessarily ideal for every person in his family. The members of his family might vehemently disagree with him, but it would be entirely possible for him to genuinely not hear a word they said, being wrapped up in what he saw as his own indispensable role in the family, and, consequently, to listen to absolutely nothing he was told.

More charitably, one might simply say that public interest is a contested term in Indian law.

When it comes to content which is transmitted to people through various mediums such as the television or via films, the law doesn’t clearly separate the content from carriage — or, in lay terms, speech from the mode of transmission. Due to this, laws which deal with specific modes of transmission often contain legal requirements not just in relation to such issues as, perhaps, the licensing of equipment but also in relation to what sort of content may be carried over those mediums. This is an additional layer of regulation superimposed over the existing requirements of traditional laws which apply to all speech regardless of the mode through which they are transmitted.
In other words, in addition to the laws which apply to all speech without regard to how it is communicated or transmitted, there are also instruments, often non-statutory in nature, which apply to speech transmitted through specific modes of communication. These include regulations associated with the 1952 Cinematograph Act, the 2000 Information Technology Act, and the 1995 Cable Television Networks (Regulation) Act.
If that weren’t enough, speech is also by categorised by its nature depending on who expresses it and what its purpose is. Once it is so categorised, there are restrictions placed on what may be said either through hard law itself or through the mandates of self-regulatory industry bodies which may have the force of law.
Thus, it has come to be that there exist regulations and guidelines which affect various specific forms of speech including: advertising through the Advertising Code contained in Rule 7 of the 1994 Cable Television Networks Rules and the Code for Self-Regulation of Advertising Content in India issued by the Advertising Standards Council of India, non-news broadcasts through the Self-Regulatory Guidelines for IBF Member Non-News Channels of the Indian Broadcasting Foundation, news broadcasts through the Code of Ethics and Broadcasting Standards issued by the News Broadcasters Association, and general reportage through the Norms of Journalistic Conduct issued by the Press Council of India. All of this self-regulation, too, obviously constitutes yet another group of regulations applicable to various kinds of speech although the degree of enforcement of the varies.
Considered in relation to each other, it emerges that instruments regulating speech have two interesting features: firstly, they do not form non-intersecting sets, so to speak. All of them tend to resemble each other in broad strokes even though they do not exactly replicate each other’s provisions. Secondly, they contain a rather odd combination of rules which either reinforce the provisions of various statutes or which are in the nature of residuary or catch-all clauses that could be used to prohibit content which was seen as being problematic but did not belong to any of the categories of explicitly prohibited content.  To take just one example, Rule 6(1)(o) of the 1994 Cable Television Networks Rules prohibits content which ‘is not suitable for unrestricted public exhibition’ from being included in programmes. Such clauses are so vague in terms of specifying what they could be intended to apply to that lend themselves to being be invoked to impede the communication of any content which may considered to be objectionable even if there is no clear statutory basis on which the content in question may be assailed.
It is not just residuary clauses which suffer from vagueness though. The CBFC film certification guidelines requires the Central Board of Film Certification to ensure that ‘human sensibilities are not offended by vulgarity, obscenity or depravity’ by the content of films. Of course, human sensibilities do not lend themselves to precise legal definition although what is noteworthy is that no-one is ordinarily sent to jail for offending human sensibilities alone even if the content they peddle is, say, explicit and possibly considered to be obscene by some people. Section 292 of the Penal Code criminalises the execution of a number of acts relating to obscene content if the content tends to ‘deprave and corrupt’ persons; the provision does not apply if content merely offends the sensibilities of some people. Due to this, it could be argued that criminal law comes into play only if the content in question leads to a certain effect which it specifies and not otherwise.
With regard to this prohibition in the CBFC Guidelines, there are statutory provisions which could be used to challenge the publication or broadcast of obscene content, or, for that matter, vulgar or depraved content depending on precisely what it depicted. That said, none of these terms — ‘obscenity’, ‘depravity’, or ‘vulgarity’ — are specifically defined in statute. There exists some case law which might help one assess whether the law would consider specific content to fall into one of those categories but the lack of precise definition makes them extremely susceptible to subjective interpretation. Additionally, the CBFC Guidelines could be considered to alter the scope of what sort of content could be prohibited under statute since they could be interpreted to prohibit content which merely offends human sensibilities.
Consider obscenity alone: the prohibition in the CBFC Guidelines could be read either so as to broaden or to narrow the quantum and nature of explicit content which would, in any case, already be prohibited by criminal law. And the possibility of divergent interpretations being arrived at has the potential to result in any content which anyone with decision-making power finds offensive being prohibited.
This is, of course, not an ideal situation but it nonetheless arises not just in relation to films but also in relation to television programmes and online content. For example, regulations require television content not to contain criticism of friendly countries, and restrict the continued publication of content online if it is grossly harmful although there is no clarity about what manner of harm the relevant Rules contemplate or to what extent factual reportage could fall within their scope. Due to the disparity between statutory restraints which tend to be relatively narrow and comparatively easy to implement on one hand, and far more vague restrictions often contained in subordinate legislation and other regulation on the other, what emerges is a situation that requires one to be relatively familiar with Indian culture, and to have a good sense of what could conceivably be considered to be problematic by some section of society or other, or by the powers that be, to know what sort of speech it might be prudent not to express.
Without being entrenched in Indian socio-legal mores and practices, it would likely be particularly difficult to determine which content would likely become legally problematic. This is true since not only are the Rules vague but due to the fact that they are also intermittently effectively added to by ministries such as the Ministry of Information and Broadcasting which may issue advisories related to content itself or to procedural issues such as the time when specific content could legally be broadcast. For example, in 2017, the Ministry restricted the times at which ads for condoms could be broadcast to between 10 pm and 6 am due to concerns about their indecency especially if children were to be exposed to them. Whether this was the ideal way to proceed considering the role of condoms in helping to prevent unwanted pregnancy and sexually-transmitted diseases is debatable. Nonetheless, it does not appear that, in having issued such an advisory, the Ministry would not necessarily have overstepped its bounds since the law is vague enough to allow such interventions by the executive.
It is not uncharacteristic of governments or their agencies to issue directives or advisories (which those with a minimal degree of prudence would ordinarily follow) in furtherance of what they consider to be the best interests of the public. Policy is not always clearly based on evidence, and may be crafted in accordance with beliefs which seem axiomatic to their drafters even if there are times when others would not necessarily see them in the same light. Such was the case with regulating ads for condoms in the manner of the Ministry: there is no doubt that the regulation is well-intentioned although there is a considerable degree of doubt about whether it would be able to avoid inadvertently leading to adverse effects such as, possibly, decreasing knowledge of the practice of safe sex amongst young people.
When it comes to content which is in the form of advertisements, the law is particularly stringent presumably recognising that it is in relation to advertising that consumers of goods, services, and facilities are at their most vulnerable. It regulates advertising not least through a number of statutes which apply regardless of what the medium of communication is and may, occasionally, kick into play at specific times such as during an election season to try not to unfairly influence who is elected. After all, it could be argued that elections and choosing who provides and administers our public services goes to the heart of defining not only who we are as a people but also ensuring that the state runs smoothly. And so, paternalistic though it may be, content regulation during elections is easily justifiable given how critical elections are to democracy. That said, realising the aims of the law is often easier said than done.
Elections aside, in the most general terms, the 1986 Consumer Protection Act restrains ads which would mislead people. It prohibits disseminating false information, disparaging either the goods or services of others, falsely offering goods or services at bargain prices, and allowing a false impression that something is free to be created. In addition to the general prohibitions in the Consumer Protection Act, there are a number of regulations in disparate statutes which also apply to advertisements:
  • the 2003 Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act;
  • the 1992 Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act;
  • the 1940 Drugs and Cosmetics Act; and
  • the 1954 Drugs and Magic Remedies (Objectionable Advertisements) Act.

      All of these statutes regulate communications made to the public in relation to the products named in their titles. And, in addition to statutory provisions, a great deal of the content regulation which ads face is through the code of a self-regulatory council, the Advertising Standards Council of India which was formed in 1985 and is registered as a not-for-profit company under Section 25 of the Indian Companies Act. For all practical purposes, the ASCI Code has the force of law and has, in fact, been incorporated directly into law through the 1994 Cable Television Networks Rules which prohibits advertisements that violate the ASCI Code from being carried on cable services. It is, however, primarily intended to complement the law, and not to supplant it and even the Cable Television Networks Rules which incorporates the ASCI Code contains its own Advertising Code.
      The fundamental aims of the ASCI Code are to have advertisements — in essence, communications addressed to the public which are ordinarily paid for and which are published in order to influence the opinions and behaviour of members of the public — be truthful, not cause offence, not promote harmful products or situations, and not resort to relying on unfair competition between the providers of goods, services, or facilities. The Code also contains specific requirements in relation to particular products, and is amended from time to time.
      In 2014, for example, guidelines were inserted into the ASCI Code for use whilst creating and assessing advertisements for fairness and skin lightening creams. At the time, these ads had come under increasingly harsh criticism for perpetuating and reinforcing the belief that light skin is somehow more desirable than dark skin. Amongst other things, the then-new guidelines said that advertisements should not show people ‘with darker skin in a way which is widely seen as, unattractive, unhappy, depressed or concerned’ and added that advertisements should not associate specific skin colours with ‘any particular socio-economic strata, caste, community, religion, profession or ethnicity’ or perpetuate gender-based discrimination because of skin colour.
      The guidelines relating to advertisements for fairness products were issued despite the ASCI Code already stating that ads should not deride race, caste, colour, creed or nationality. The pitfalls of having vague guidelines are clear enough. Nonetheless, the ease with which fairness creams were dealt with also highlights that when guidelines are vague, it becomes easier to speak of issues which could, however tenuously, be interpreted to fall within their scope. That said, although guidelines specifically addressing a problem which arose essentially due to cultural perceptions were issued in relation to skin lightening products, it is not always the case that new guidelines are issued, and certainly not immediately.
      When issues arise, and the law takes a while to catch up to progressive social mandates, having existing laws be malleable becomes a blessing. Whether or not it is enough of a blessing to refrain from asking that they be reconsidered is, however, arguable. After all, instruments which are malleable are as susceptible to progressive interpretation as they are to regressive interpretation, and in a conservative society, they may have the ability to do far more harm than good.
      Not all laws are controversial though, and they cover a spectrum of issues from the protection of an individual’s person to protection against unfair financial practices. Although some of them are subject to a degree of controversy, there is very little argument against the laws which are intended to achieve such aims as ensuring transparency in the conduct of business by banks and financial institutions. These are fairly direct laws which are clearly in the public interest; they attempt to ensure that consumers of products are not duped and that they are able to make informed choices. The 2000 Insurance Regulatory and Development Authority (Insurance Advertisements and Disclosure) Regulations, for example, stipulate which particulars insurance companies must disclose in advertisements including the details of the company, and, when it comes to policies, their benefits and the type of coverage. Further, the websites of insurers must disclose their registration or licence numbers as well as their policies to protect the privacy of personal information.
      The Indian corpus juris also contains laws which impact personal autonomy and ostensibly choice. For example, the 1994 Transplantation of Human Organs Act prohibits commercial dealings in human organs as well as advertisements in relation to such dealings. Although there are those who may argue that this is an unfair restriction which hinders the exercise of supposedly free choice, there isn’t much doubt that commercial dealings in human organs are deeply problematic particularly since it is poor people who are likely to be disproportionately impacted and likely subjected to exploitative practices if commercial dealings in human organs were to be legalised. In fact, even with such dealings being prohibited, the statute’s being in force does not appear to have resulted in the sale of human organs simply not occurring.
      Apart from the occasional scandal which makes its way to the press, there have also been reports of women who may be trafficked having their skin harvested without their even knowing it — they may be drugged only to later imagine or be led to believe that the damage done to them was caused by a ‘client’ who had engaged them. That, however, seems to be problem with the implementation of the law, and having a statute in place which deals with the issue at least provides a legal framework through which such occurrences can potentially be addressed. Not all law can categorically be defended as being in the public interest when they challenge personal autonomy and individual choice though.
      Some laws tend to contain more than a sliver of paternalism; the 1998 Lotteries (Regulation) Act, for example, prohibits the promotion of lotteries which are considered to be illegal in terms of the statute while the earlier 1955 Prize Competition Act prohibits advertising prize competitions in violation of statutory requirements which, depending on the value of the prize, generally mandate that a licence be obtained to conduct lotteries and prize competitions.
      Although there are strong arguments against state paternalism to be made in light of the restrictive impact it can have on individual choice, it is extremely difficult to draw a meaningful line between a regulation that is reasonable and in the public interest, and one which may be considered to be unreasonably paternalistic. During the colonial era laws, it was possible to justify intrusive regulations using some version of the White Man’s Burden and the supposed responsibility which the British had to interfere in the lives of indigenous peoples, and it wasn’t at all uncommon to see references to the White Man’s Burden which were either direct or simply implied.
      Colonial notions of supposedly civilising native peoples, for obvious reasons, could no longer be used in independent India, and post-colonial justifications for paternalistic laws have generally focussed on ‘social upliftment’ and hoping to realise such aims as ‘fostering a scientific outlook’ amongst people. This has not only inspired the development of fairly-uncontroversial legislation which mandates fairness in financial matters but has also led to the sometimes-controversial regulation of content which speaks of social practices whether they are traditional or newly-developed.
      Programmes on cable television, for example, are not permitted to encourage superstition or blind belief, many of which are of ancient provenance. The problem, of course, is that many of these ancient beliefs are tied in with spiritual canons that are not easily challenged in a country like India and perhaps should not necessarily be challenged.
      'Spiritual India' aside, there's also the more-modern 'Consumerist India'. Celebrities who, as part of newly-developed trends, endorse products in advertisements are well advised to follow ASCI’s ‘Guidelines for Celebrities in Advertising’ which were issued in 2017. The Guidelines clearly reflect current concerns with the prevalent modes in which celebrity endorsements are conducted: they state that celebrity endorsements must be based on ‘adequate information about or experience with the product or service being advertised’, and that celebrities should conduct some form of due diligence before endorsing a product. The guidelines also prohibit celebrities from participating in ads for products which are marked as being injurious to health in line with legal requirements. One can only presume that this is in public interest, a term which has never lent itself to easy definition and is continually contested simply because no-one is ever sure what precisely is in public interest.
      When one takes a step back, what one sees is that that the laws which govern free speech are not a monolith. In fact, they are not even all laws in the strictest sense of the term as they include guidelines by self-regulatory industry bodies. Together, they form layer upon layer of regulation which tend to coalesce to form an indistinguishable mass. And, given the lack of precise legal definition in numerous cases, the body of instruments which regulate speech is, all too often, incomprehensible. This obviously does not augur well for free speech but it is what India and Indians currently have to deal with. It is also why there exists a strong argument to completely rehaul free speech law so as to limit and clarify the grounds on which speech may be assailed.
      Restructuring laws and regulations to make them less of a hindrance to the exercise of free speech will likely require stripping the law of its overtly paternalistic tendencies, and such an exercise is likely to face a reasonable amount of resistance particularly considering that India is hardly an individualistic society. Nonetheless, a body of law which effectively allows any speech to be assailed should not be acceptable: it directly curtails the likelihood of anyone feeling free enough to exercise the right to free speech which happens to be a fundamental right, and it has the propensity to waste vast amounts of judicial time dealing with frivolous complaints about supposedly objectionable speech which should never have made their way into a courtroom.
      (This post is by Nandita Saikia and was first published at IN Content Law.)

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