INTRODUCTION
“Where words fail, music speaks”, said by Hans Christian Andersen is enough to explain the importance of music for expressing our feelings, thoughts, and emotions and of course, the pleasure of listening cannot be excluded. Music has been deeply rooted in our culture, evident by the fact that the first movie song was recorded in India in 1902, by GauharJaan. With a population of more than 121 billion people, where we have 22 recognized languages excluding English, India becomes a very big consumer as well as producer of music. So we have an audience for every kind of music that is produced, and we all know, from the previous cult classics and the fame of musicians, that music has a very big influence over the masses. This influence is what raises a concern that misleading, obscene or vulgar language in songs can corrupt the minds of listeners. So regulation of the content becomes very important, and in the blog, we are going to discuss about the provisions and the role of courts in that matter.
OBSCENITY
According to Black’s Law Dictionary “obscenity means character or quality of being obscene, conduct, tending to corrupt the public merely by its indecency or lewdness”. The offence of obscenity is punishable under section 294 of IPC. As held in the judgement of Chandrakant KalyandasKakodar vs The State of Maharashtra, the test of obscenity is that the matter has to be view as if it has the tendency to corrupt the minds of consumer.
PROVISIONS REGARDING REGULATION OF CONTENT IN INDIA
- Information technology (Intermediatory guidelines and Digital media ethics code) Rules, 2021 by the act a modus operandi is laid down by the central government for every intermediatory like YouTube, Facebook, Twitter, etc. to regulate the content over their respective platforms. An intermediatory is defined under Section 2(w) of the act as-“2. (w) ‘intermediary’ with respect to any particular electronic message means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message.”Section 3 of the Ethics code lays down due diligence that is to be followed, that is an intermediatory on whose computer resource the information is stored or published, upon receiving actual knowledge in form of an order by a court of competent jurisdiction or on being notified by the Appropriate Government or its agency under clause (b) of sub-section (3) of section 79 of the Act, shall not host, store or publish any unlawful information, which is prohibited under any law for the time being in force.
- The Cinematograph Act, 1952the act regulates the exhibition of films by means of cinematographs and grants certifications to exhibit the films. Section 3 of the act empowers for the establishment of censor board, Central Board of Film certification.
- The Cable Television Networks (Regulation) Act, 1995the act regulates the content that has to be telecasted over television.
CASE
Neha Kapoor & ANR V Ministry of Information and Broadcasting & ANR
A PIL was filed in the Delhi High Court, seeking setting up of a regulatory authority to censor the contents, such as lyrics and videos, of the non-film songs and immediate ban on all the songs with vulgar/ obscene content. The petition was dismissed stating that “there is a clear regulation/regime that has been laid down by the Central Government to regulate the information/content which is available to the general public through various media platforms. The contention of the Petitioner that there is no regulatory authority is incorrect. Directing for appointment of a regulatory authority would result in legislation by this Court which is not permissible. Courts cannot mandate a statute or add provisions to a Statute as it would amount to legislation which is not permissible in the constitutional scheme of this country.” From this judgement we can understand that there is clear separation of powers, and censorship does not come under the court’s discretion.
CONCEPT OF SEPARATION OF POWERS
Separation of power refers to the concept of division of powers among the legislative, executive and judiciary independent of each other. This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein he described the three agencies of the government as General Assembly, Public Officials and Judiciary. The main purpose of the concept is to prevent the abuse of power by any one person or a certain agency of people. It also limits any one branch of the government from obtaining arbitrary powers and infringing personal rights and liberty of individuals. Article 50 establishes the independence of judiciary.
The doctrine of separation of powers is a part of the basic structure of the Constitution, although not specifically mentioned. The legislature cannot pass a law violating this principle. The judiciary can only test the legality of a statute, and not to amend, modify or mandate a statute or legislation. This has been upheld in the judgement of John Paily v. State of Kerela .
In the landmark judgement of Ram JawayaKapur V. State of Punjab, the Hon’ble court noted that “The Constitution of India has not acknowledged the doctrine of separation of power emphatically but the functions and powers of all the organs have been adequately distinguished. Thus, it would not be wrong to say that Indian constitution does not behold assumptions rather it works in a flexible manner considering the needs of the country. So, the executive can exercise the law-making power only when delegated by the legislature and it is also empowered to exercise judicial powers within the limits. But on an all, no organ should exercise its power beyond the provision of the constitution.”
CONCLUSION
It is clear that the intermediatory guidelines of the IT rules, 2021 can set up a regulation over the songs that are published over various streaming platforms and there have been instances when the government has asked various platforms to delete songs which it considered problematic and not within the lines of the ethics code, but the same can also be attributed with the notion that government often uses it arbitrarily take down songs. It limits the freedom of expression as guaranteed in the Article 19 (1) of the constitution. It is true that regulating digital intermediaries isn’t going to be a cake walk, Information technology (Intermediatory guidelines and Digital media ethics code) Rules, 2021have been challenged various times in the supreme court and multiple high courts, and it’s legality has been put under the test. A transparent and upright framework is the need of an hour, and as the courts can only test the legitimacy of a legislation, we can only look forward to the central government to assume its responsibility.
Author(s) Name: Divyansh Rathi (Dr. Ram Manohar Lohiya National Law University, Lucknow)
