NUJS Law Review
Volume 7 – Issue 2
Volume 7 – Issue 2
This paper argues that access and free flow of information need to be seen as significant parts of our freedom of expression jurisprudence. In particular, it highlights the role played by information gatekeepers in the free circulation of information. Starting from Ranjit D. Udeshi v. State of Maharashtra, in which the strict liability of gatekeepers was used to restrict the circulation of obscene material, up to the current system for government-ordered blocking of content by internet intermediaries in India, information gatekeepers are used to control information. Our freedom of expression norms need to take this into account besides their focus on the rights of primary speakers, since information gatekeepers can be used to censor speech in an opaque fashion that leaves little room for accountability. Read More
The Supreme Court’s 1996 judgment in People’s Union for Civil Liberties (PUCL) v. Union of India was a significant attempt to solve the problem of widespread telephone tapping, and its influence has been strongly felt in subsequent laws designed to balance the right to privacy against the state’s power to conduct surveillance. The safeguards against arbitrariness in the exercise of the state’s surveillance powers designed by the Court continue to apply in the Internet age. However, new mass surveillance programs being undertaken by the Indian government that are unprecedented in their scope necessitate a thorough re-examination of our privacy laws. This note explains how the PUCL guidelines have influenced Indian surveillance law over the past two decades, the manner in which the safeguards designed by the Court have not always worked (or have been circumvented), and argues that with the Internet taking over the telephone as perhaps the most important mode of communication in India today, the time has come to revisit India’s surveillance laws to better protect the right to privacy. Read More
The article provides a response to the writ petition pending before the Supreme Court in Kamlesh Vaswani v. Union of India, which seeks to ban pornography in its entirety. A problematic part of the petition is its prayer to criminalise private consumption of pornography as well as the prayer seeking that intermediaries ban pornography. Systematically critiquing the arguments presented in the petition, the author points out that most claims made in the petition are speculative and uncorroborated. More importantly, any paternalistic State intervention, based on the petition, would lead to the curtailment of constitutionally guaranteed liberties and freedoms of citizens. Presenting socio-legal arguments based on the larger contours of liberal constitutional theory, the author argues that the privacy and free speech provisions in the Constitution of India are broad enough to protect private viewership of pornography. Read More
Of all the laws that were inherited from the colonial regime in India, few have been as controversial as those related to seditious offences. Since independence, the law has been modified and interpreted to incorporate safeguards so it may withstand constitutional scrutiny. However, it still acts as an effective means to restrict free speech, and has been used by contemporary governments for reasons that are arguably similar to those of our former oppressive rulers. In this paper, we make a case in favour of repealing the law of sedition. Through an examination of how the law has been interpreted and applied by the courts even after it was read down in Kedar Nath v. Union of India, it is argued that it is indeterminate and vague by its very nature and cannot be applied uniformly. Further, the law was enacted by a colonial autocratic regime for a specific purpose, which cannot extend to a post-independence democratically elected government. An analysis of the cases of sedition before the High Courts and Supreme Court show that the offence of sedition is increasingly becoming obsolete. Problems of public order, which the law purportedly addresses, may instead be addressed through other laws that have been enacted for that specific purpose.Read More
On March 22, 2013, the Telecom Regulatory Authority of India released the Standards of Quality of Service (Duration of Advertisements in Television Channels) (Amendment) Regulations, 2013, which mandates that broadcasters restrict advertisements on television channels to a maximum of twelve minutes per clock hour. While the Ministry of Information and Broadcasting and the News Broadcasters Association vehemently oppose this measure as a draconian step that will adversely impact revenues and violate broadcasters’ freedoms of speech and business, the TRAI argues that the duration of advertisements is inversely proportional to the quality of the viewing experience, and that the measure is necessary to protect consumer interest. This paper analyses the debate surrounding the Standards of Quality of Service (Duration of Advertisements in Television Channels) (Amendment) Regulations, 2013, as a measure for advertising regulation. It examines the TRAI’s role as regulator and evaluates the legal and economic arguments for and against the measure. Read More
When analysed from an economic perspective, ownership concentration in the media market is a natural phenomenon. Such concentration, when aided by convergence in technology and the digitisation of the media, has had a negative effect on the plurality of opinion available in the marketplace of ideas. This problem has been compounded by decreasing editorial independence, issues of paid news, emergence of private treaties and advertorials. The recent Recommendations on ‘Cross Ownership of Media’ by the Telecom Regulatory Authority of India have tried to tackle the problem of media concentration by placing structural restrictions on ownership. These recommendations have, inter alia, sought to establish an independent ‘media regulator’ which would have jurisdiction over both print and television segments of the media. However, these recommendations have faced opposition from various stakeholders on the ground that they violate their freedom of speech and expression and right to work. They also reason that the concentrative effect of the media is nullified by the growing popularity of the Internet. In this article, we debunk these oppositions to argue that a free market approach to the media market would lend disproportionate power to media houses and would be detrimental to the democratic setup of the country. Thereafter, while specifically scrutinising the recommendations, we provide a limited critique and alternatives to two recommendations- the organisational structure of the media regulator and the use of the HHI for measuring concentration. Read More
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