📰 Government to monitor OTT content
3-tier grievance redressal mechanism provides overriding powers for government to step in.
•For the first time, the government, under the ambit of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, has brought in detailed guidelines for digital content on both digital media and Over The Top (OTT) platforms, while giving overriding powers to the government to step in.
•The new rules were unveiled at a joint press conference by Information Technology Minister Ravi Shankar Prasad and Information and Broadcasting Minister Prakash Javadekar.
•The new rules lay down a three-tier grievance redressal mechanism.
•One will be at the level of each OTT provider. Each complaint will have to be addressed within 15 days. If the complaint is not satisfactorily addressed, then the complainant can scale it up to a self-regulatory body collectively established by the OTTs. This body will be headed by a retired judge of the Supreme Court, a High Court, or an independent eminent person from the field of media, broadcasting, entertainment, child rights, human rights or other relevant fields. This self-regulatory body also has “censuring” powers in case of any incriminating content. The rules say, “In case of any content where it is satisfied that there is a need for taking action to delete or modify the content for preventing incitement to the commission of a cognizable offence relating to public order.”
•To top this, at the third tier, the government has equipped itself with overriding powers in the form of “oversight mechanism”. An inter-ministerial committee will perform this function and it will largely have the same powers as the collective self regulatory body of the OTTs.
•Over and above all this, the government has equipped itself with “emergency” powers. The rules state, “in case of emergency nature” the Secretary, Ministry of Information and Broadcasting may, “if he is satisfied that it is necessary or expedient and justifiable” give orders to block public access of any information. The rules state that he or she has to record the reason for doing so in writing and it will be an interim measure. Importantly, such orders can be released “without giving an opportunity of hearing” to the publishing platform.
•Both Ministers also clarified that no new law has been framed. And the government already has power to step in in case of an emergency under the existing law.
•Mr. Javadekar said that the structure has been created to facilitate “soft touch regulation”. There have been widespread concerns about digital content, especially on OTT platforms, Mr. Javadekar said, with 50 Parliament questions in the recently concluded first part of the Budget session dedicated to it.
•“The digital media platforms have no monitoring mechanism like TV News Media or the print media. Which is why the government felt that there must be a level playing field. All media platforms must have the same justice system,” Mr. Javadekar said. TV has to follow the code under the Cable Network Act, and print media is regulated by the Press Council of India.
•He said that multiple meetings had been held with OTT platforms before the framing of these guidelines, including in Delhi, Mumbai and Chennai. Two of these meetings, Mr. Javadekar said, were held in Delhi chaired by him. He said that despite the Ministry’s request, the OTT platforms had not come up with a satisfactory self-regulatory mechanism.
•“There is a Censor Board for films, but OTT platforms have no such mechanism. For OTT platforms, we have decided on a 3-tier system,” Mr. Javadekar said. He added that both OTT and digital media would have to disclose details about themselves, their area of operation, the number of subscribers, and so on. “We are not mandating registration, we are seeking information,” he said.
•OTT platforms will have to self-classify content into five age based categories — U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). Platforms would be required to implement parental locks for content classified as U/A 13+ or higher, and reliable age verification mechanisms for content classified as “A”. The majority of OTT platforms currently follow this mechanism.
•Publishers of news on digital media would be required to observe the ‘Norms of Journalistic Conduct’ of the Press Council of India and the ‘Programme Code’ under the Cable Television Networks Regulation Act. Setting out general principles, the rules say that publishers should take into consideration that the content does not “affect the sovereignty and integrity of India” or “jeopardises the security of the State”, among other things.
Pakistan calls it a ‘win’, India says no change in positions.
•In a first joint statement issued by the two sides in years, India and Pakistan on Thursday said they have agreed to a “strict observance of all agreements, understandings and cease firing along the Line of Control (LoC) and all other sectors” with effect from the midnight of February 24/25 (Wednesday). The decision was announced after discussions between the Director Generals of Military Operations (DGsMO) over the established hotline on February 22.
•“In the interest of achieving mutually beneficial and sustainable peace along the borders, the two DGsMO agreed to address each other’s core issues and concerns which have [the] propensity to disturb peace and lead to violence,” the statement issued in Delhi and Islamabad said, adding that they would use existing mechanisms of hotlines and flag meetings to resolve any “misunderstandings”. As per the existing mechanism, there is a discussion by officials from the Military Operations directorate every Tuesday but the DGsMO speak only when one side requests a conversation.
•However, Army sources reiterated that there would be “no let-up” in counter-terror operations as a result of the agreement, adding that the agreement with Pakistan was “an attempt to bring violence levels down”, but the Army retained the “right to respond” in case there is a terror attack in the future.
•“India desires normal neighbourly relations with Pakistan. We have always maintained that we are committed to addressing issues, if any, in a peaceful bilateral manner,” said Ministry of External Affairs (MEA) spokesperson Anurag Srivastava, when asked about the timing of the agreement that follows days after India and China announced a disengagement along the Line of Actual Control (LAC). “On key issues, our position remains unchanged,” he added.
•Pakistan’s Special Assistant for National Security Affairs Moeed Yusuf called the agreement a “win” for Pakistan. He said the agreement followed “efforts behind the scenes”. In a tweet, he denied that the talks were the result of “back-channel diplomacy” between him and National Security Advisor Ajit Doval, and had resulted from the “direct channel” between the DGsMO.
•“Do you think this could happen without efforts or without pressure, something which India has not agreed to all these months and years?” Mr. Yusuf told journalists in response to questions about the agreement. “So, this is our success, the success of diplomacy and god willing more roads will open in the future, so that the resolution of Kashmir that we want, the way we want will happen,” he stated.
Imran’s stand
•Pakistan’s move for the DGsMO talks marks a break from its Prime Minister Imran Khan’s previous stand over the government’s decision to amend Article 370, where he had said no engagement with India was possible without the restoration of Jammu and Kashmir’s “autonomous” status.
•Calling the agreement “path-breaking” Happymon Jacob of the School of International Studies, Jawaharlal Nehru University, and author of two books on the LoC said this was the biggest military measure between the two sides in 18 years to normalise the situation along the LoC.
•“The agreement comes in the wake of over 5000 CFVs [cease-fire violations] last year, the highest in 19 years, and this shows the realisation in New Delhi and Islamabad that they cannot afford to let violence spiral out of control given its inherently escalatory nature,” Professor Jacob said.
•According to data provided by the Ministry of Defence in Parliament earlier this month, there were 5133 instances of CFVs along the LoC and other areas in Jammu and Kashmir, resulting in 46 fatal casualties in 2020, and 3,479 CFVs in 2019. In May 2018, the DGsMO agreed during a similar hotline conversation to observe the ceasefire strictly, but subsequent tensions over the Pulwama attack, Balakot air strikes and the Article 370 move led to a sharp spike in CFVs.
📰 INCOIS to go for airline mapping of ocean floor
To take the help of National Remote Sensing Centre for study
•The Indian National Centre for Ocean Information Services (INCOIS) is planning to take the help of the National Remote Sensing Centre (NRSC) for airline mapping of Andaman and Nicobar Islands and Lakshwadeep to get a better picture of the ocean floor, also called ‘bathymetric’ study.
•“NRSC has already done a similar high resolution topographic Airborne Laser Terrain Mapping (ALTM) for entire coastal areas of the country and we are in the process of integrating the data for a 3D multi-hazard mapping of both the east and west coastline for a more precise picture of the ocean floor,” said director T. Srinivasa Kumar, in an exclusive interaction.
•Such a study has become imperative in view of the recent tsunamis of the Indonesian coasts where more than the quake related high waves, damage was due to landslides that had under the sea beds causing sudden wave surge leading to much damage without giving sufficient time to alert people, he pointed out.
•The research institute, under the Ministry of Earth Sciences, had also identified ‘gaps’ across the coast of Andhra Pradesh and Odisha for installing more tide gauges for better monitoring of the sea and more accurate prediction of impending disasters like cyclones. This is in addition to the 36 already floating on the Bay of Bengal, informed senior scientist E. Pattabhi Rama Rao.
•In the meantime, INCOIS scientists in association with their counterparts in the Chennai-based National Institute of Ocean Technology (NIOT) and an United States independent scientific agency, Massachusetts-based Woods Hole Oceanographic Institute (WHOI), have been mining the data recorded by a unique ‘Flux Buoy’ retrieved from the Bay of Bengal off the Kolkota coast, a few months ago.
•The buoy was dropped off into the sea to monitor the temperatures, pressures, salinity, radiation and geo-chemical changes at various depths in a high resolution scale, compared to other buoys in the seas. “It was ‘installed’ on the far seas in May 2019 and was supposed to have been retrieved in May 2020 but due to lockdown and restricted overseas travel conditions, the US scientists could not come, so we took it out in October,” explained Mr. Rao, also group head of ocean observations and data management group.
•“It will take months before we are able to decipher the information logged on the buoy and efforts are on to simultaneously unravel the data online at NIOT, here and the WHOI,” he added.
📰 The absurdity of the anti-defection law
It has reduced legislators to being accountable primarily to the party and failed to preserve the stability of governments
•The events in Puducherry highlight, yet again, the absurdity of the anti-defection law. In what has now become the standard operating procedure, several MLAs from the treasury benches resigned, lowering the numbers required for a no-confidence motion to succeed. This formula has been seen recently in other States such as Madhya Pradesh and Karnataka.
•The anti-defection law was included in the Constitution as the Tenth Schedule in 1985 to combat the “evil of political defections”. The main purpose was to preserve the stability of governments and insulate them from defections of legislators from the treasury benches. The law stated that any Member of Parliament (MP) or that of a State legislature (MLA) would be disqualified from their office if they voted on any motion contrary to the directions issued by their party.
Range of the provision
•The provision was not limited to confidence motions or money bills (which are quasi-confidence motions). It applies to all votes in the House, on every Bill and every other issue. It even applies to the Rajya Sabha and Legislative Councils, which have no say in the stability of the government. Therefore, an MP (or MLA) has absolutely no freedom to vote their judgement on any issue. They have to blindly follow the direction of the party. This provision goes against the concept of representative democracy.
•There are two broadly accepted roles of a representative such as an MP in a democracy. One is that they are agents of the voters and are expected to vote according to the wishes and for the benefits of their constituents. The other is that their duty to their constituents is to exercise their judgement on various issues towards the broader public interest. In this, they deliberate with other MPs and find a reasonable way through complex issues. The anti-defection law turns the concept of a representative on its head. It makes the MP neither a delegate of the constituency nor a national legislator but converts them to be just an agent of the party.
A broken chain in India
•Look at the contrast with other democracies. For example, in the recent vote on the impeachment of former U.S. President Donald Trump, seven members from his party in the U.S. Senate, the Republicans, voted to convict him. Such a decision does not have any legal repercussion. Of course, the party may take action (it did not). Also, voters may decide to reject the legislator for re-election — and that is the core design element of representative democracy. The legislator is accountable to voters, and the government is accountable to legislators.
•In India, this chain of accountability has been broken by making legislators accountable primarily to the party. This means that anyone from the party having a majority in the legislature — which is, by definition, the party forming the government — is unable to hold the government to account. Further, all legislators have a ready explanation for their voting behaviour: they had to follow the party’s direction. This negates the concept of them having to justify their positions on various issues to the people who elected them to the post.
Eroding legislatures
•An important consequence of the anti-defection law is the hollowing out of our legislatures. If an MP has no freedom to take decisions on policy and legislative proposals, what would be the incentive to put in the effort to understand the different policy choices and their outcomes? The core role of an MP to examine and decide on policy, Bills and budgets is side-lined. Instead, the MP becomes just another number to be tallied by the party on any vote that it supports or opposes.
•The framers of our Constitution did not intend this outcome. While introducing the draft Constitution, Dr. B.R. Ambedkar outlined the differences between the presidential and parliamentary forms of government. He said that the presidential form (such as in the United States) had higher stability but lower accountability as the President is elected for four years, and cannot be removed except for proven misdemeanour. In the parliamentary form, the government is accountable on a daily basis through questions and motions, and can be removed any time it loses the support of the majority of members of the Lok Sabha. The drafting committee believed that India needed a government that was accountable, even at the cost of stability. The anti-defection bill weakens the accountability mechanism.
Inducing instability
•What is more, it does not even provide stability. The political system has found ways to topple governments. This includes the methods used in Puducherry this week — of reducing the total membership through resignations. The Constitution was amended to ensure that any person disqualified for defecting cannot get a ministerial position unless they are re-elected; the way around this has been to resign rather than vote against the party. In other instances, the Speaker — usually from the ruling party — has delayed taking a decision on the disqualification. This has led to strange situations such as members who continue to be part of the main Opposition party becoming Ministers (Andhra Pradesh in the term of the last Assembly). The Supreme Court has tried to plug this by ruling that the Speaker has to take the decision in three months, but it is not clear what would happen if a Speaker does not do so. The premise that the anti-defection law is needed to punish legislators who betray the mandate given by the voters also seems to be flawed. If voters believe that they have been betrayed by the defectors, they can vote them out in the next election. However, we have seen many of the defectors in States such as Karnataka and Madhya Pradesh being re-elected in the by-polls, which were held due to their disqualification.
Onus is on parties
•The problem arises from the attempt to find a legal solution to what is essentially a political problem. If stability of government is an issue due to people defecting from their parties, the answer is for parties to strengthen their internal systems. If they attract members on the basis of ideology, and they have systems for people to rise within the party hierarchy on their capabilities (rather than inheritance), there would be a greater exit barrier. These characteristics seem absent in many of the political parties, and we have seen a large number of defections despite the anti-defection law.
•To sum up, the anti-defection law has been detrimental to the functioning of our legislatures as deliberative bodies which hold the executive to account on behalf of citizens. It has turned them into fora to endorse the decision of the government on Bills and budgets. And it has not even done the job of preserving the stability of governments. The Tenth Schedule to the Constitution must be repealed.
📰 Inhibiting free speech
Courts shouldn’t pre-empt Assembly inquiries based on limits of legislative competence
•When the Delhi Assembly summoned Facebook honcho Ajit Mohan to depose before its Peace and Harmony Committee, it unwittingly provoked a litigation that may have far-reaching implications on federalism, the separation of powers and fundamental rights in India.
Parliamentary privileges
•Parliamentary privileges are a set of rights and immunities that are essential for the functioning of Parliament. The right to free speech in the House, guaranteed to the Commons since 1689, and the right to call for evidence and witnesses, are central to the role of the legislature. In our Constitution, both Parliament and State Assemblies were conferred with the same privileges as the Commons. Apart from discussions about judges, no other speech is barred for legislators in the text of the Constitution.
•On the face of it, federalism imposes an insuperable challenge to the traditional broad reading of parliamentary privilege. The argument goes: Unlike the House of Commons, the powers of State Assemblies are more limited. If the State Assembly cannot pass a law on a subject, how can it claim a right to discuss it or call witnesses for it?
•However, this framing is misleading. First, legislation is not the only goal of discussions. Legislatures also have a separate non-judicial power of inquiry which has been judicially regarded as being inherent to the legislature, flowing perhaps from what Walter Bagehot would call the expressive and informative function of the House. Politically, the Assembly is the voice of the people of a State and their discussions are an expression of popular will. Atomic energy is the exclusive preserve of the Union. Does that mean a State Assembly cannot inquire into the possible ecological implications of a nuclear waste site within the State? Cannot State legislatures hear testimony from soldiers and pass resolutions to honour the armed forces? At least four states have passed resolutions against the Citizenship (Amendment) Act as affecting their people.
•Second, the legislative lists frequently overlap and courts resolve any conflict by adopting a test of pith and substance of the law in question. But how would this apply pre-emptively at the inquiry stage when the discussions may or may not lead to legislation?
•Third, we live in the era of co-operative federalism. How can the Union and the States cooperate if they are barred from even discussing or taking evidence on issues beyond their limited legislative competence?
•Fourth, there is the delicate issue of whether the courts can or ought to sit in judgment on the proceedings of State Assemblies determining what can or cannot be discussed based on the courts’ view of the topic. No theory of judicial review would justify such a deep dive into the “political thicket” to examine the proceedings of the House, something our Constitution expressly bars.
•The experiences of Canada and Australia, both common law federal jurisdictions, are also instructive. The Canadian chronicler Maingot hints about restrictions based on legislative competence but is careful to add that they are self-imposed, not court mandated. In Australia, the Privy Council in appeal from the High Court held that “it is hardly possible for a Court to pronounce in advance as to what may and what may not turn out to be relevant to other subjects of inquiry on which the Commonwealth Parliament is undoubtedly entitled to make laws”.
•In 1399, the Commons recognised free speech in the House as a tradition by reversing the judgment of treason on Sir Thomas Haxey. It is this ancient privilege that found its way into our Constitution. It is a landmark of liberty as it allows elected representatives to challenge the most powerful people of the land on behalf of commoners. This ancient tradition would be effaced if the court were to appoint itself an arbiter of legislative discussions. It is difficult to craft any discernible principle upon which such unprecedented power could be judiciously exercised without inhibiting free speech that is the hallmark of our legislative tradition.
📰 Vaccine inequities: On need to vaccinate all above 45
The government can consider vaccinating all those over 45 years of age
•The decision to open up about 20,000 private hospitals across India from March 1 — in addition to about 10,000 government sites — to vaccinate people older than 60 years and those above 45 years with comorbidities will at once increase the number of vaccination sites. Roping in the private sector to support the government programme of vaccinating about 270 million people belonging to the two high-risk priority groups can surely speed up vaccination coverage. At 13 million at the end of six weeks since the vaccination programme began, only a little over a third of health-care and frontline workers have been covered. With the average uptake per session only about 35%, beginning the second phase of the programme could increase this percentage. Even if CoWIN platform glitches and a decline in daily cases are partly responsible for low uptake, the hesitancy to available vaccines among health-care workers, who are one of the most informed and also at greater risk of infection, cannot be overlooked. Whether the elderly and those above 45 with comorbidities will behave strikingly different or take a cue from health-care workers and prefer to wait before queuing up for a vaccine remains to be seen.
•Crucial to increasing vaccine uptake in private hospitals will be the cost of vaccination, especially when it is available for free at government sites. At a time when vaccine uptake has been low even when offered for free, the only way to increase coverage is by making it easy for people desiring to get vaccinated to have one. While the intent to quickly protect people with comorbidities above 45 years who are at greater risk of progressing to a severe form of the disease or even death is commendable, the insistence on documentary evidence for vaccination should be reviewed if the uptake remains below the desired level. One in three adults in India has hypertension but only about half are even aware of it. It is one in 10 in the case of diabetes; awareness is about 50%. The trend is the same for a few other diseases that make a person eligible for a vaccine. With just over 21% of the population above 45 as per the 2011 Census data, the government can consider vaccinating anyone above that age who comes to a site. Similarly, insisting on prior registration on the CoWIN platform will further worsen inequities; vaccinating people who walk in without registration must be allowed. That less than 10% of people have opted for Covaxin nationally is proof that vaccine uptake is directly related to availability of trial data. The government can still win back trust and improve vaccine coverage by quickly making all vaccine trial data public. Also, timely resolution by the national committee, of serious adverse events and deaths following vaccination and sharing the details will surely inspire public confidence in the vaccines.
📰 Should governments regulate online platforms? | The Hindu Parley podcast
Reasonable regulation is democratic, but the moral panic around big tech is muddying the waters.
•Australia’s new News Media and Digital Platforms Mandatory Bargaining Code will force platforms like Facebook and Google to pay local media outlets and publishers to link their content in news feeds or search results. The Australian law is being seen as one of the early shots fired in the coming battle by countries to regulate tech giants to take back some of the control they have on global communications.
•But is it an ideal regulatory model? Won’t regulating the platforms affect free speech? Is regulating platforms the way to save the news media business that is in the doldrums? Here we discuss the issue.
