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Netflix, Amazon Prime, Hotstar, etc. now under scrutiny of Ministry of I&B

Content which is created and distributed in India, is monitored and regulated by the Government through various autonomous bodies. For instance, the Press Council of India (PCI) regulates print media, the News Broadcasters Association (NBA) monitors news channels, the Advertising Standards Council, which is a non-governmental body, keeps in check the advertising industry and the Central Board of Film Certification (CBFC) is in charge of regulating the public exhibition of films.

However, the content created on online streaming platforms, also known as “Over-The-Top” (OTT) platforms, is exhibited without any regulation or supervision of any governmental body. At present, several video streaming platforms such as Amazon Prime, Hotstar, Netflix, etc. have a viewer base of around 17 crore users forming a booming industry worth Rs. 500 crore in India and this number is expected to rise to Rs. 4000 crores by 2025. 

These online content providers come under the legal framework of the Information Technology Act, 2000 under the Ministry of Electronics and Information Technology but unlike print and broadcast media, the content created on these platforms is not being scrutinized up till now. 

However, the President, as per the power vested in him through Article 77(3), passed an order on 9th November 2020 directing the regulation of online and digital media under the Ministry of Information & Broadcasting. This would include the regulation of films, webseries, video or audio content and news or current affairs related content created online. 

These rules were issued under Government of India (Allocation of Business Rules) Three Hundred and Fifty Seventh Amendment Rules, 2020. The Ministry of Information and Broadcasting will now be responsible for regulating platforms like Netflix, Amazon Prime, Hotstar and other platforms creating news online. The order per se does not mention any platforms however the order’s language is broad and inclusive.

In February 2020, the IAMAI had proposed a self-regulatory code for such platforms that made provisions for imposing penalties, etc. but the government did not support it. Therefore, the action of regulating such platforms can be sought as a necessary step considering the increase in consumption and creation of content on such platforms in recent times. Whether this regulation by Ministry of I&B will impact positively or negatively is yet to be understood, however, one could foresee that the platforms will not have the same liberty as they did before i.e. to say the platforms could have to apply for approval before streaming or publishing the content and the content could be subject to censorship. The consumers on the other hand could now have a redressal forum under the Ministry of I&B which could relieve the Courts to a certain extent.  

The Ministry of Information and Broadcasting will now have to formulate new guidelines, rules or an act to ensure adequate and appropriate regulation since as of now the platforms do not fall under the ambit of any other acts passed by the Ministry of I&B.  

RELIANCE BREACHES THE NON-COMPETE CONTRACT – CLAIMS AMAZON

A war for leadership in the field of E-Commerce market in India is seen to be initiated. Amazon Inc. recently served Future Group ltd. with a legal notice for allegedly breaching the non- compete contract due the deal that they signed with Reliance Industries Limited. Amazon then took a further step and approached the Singapore International Arbitration Center (SIAC) in order to prevent the deal between Reliance and Future Group.

Reliance Retail’s acquisition of Future Group is considered to be a significant move towards expanding its retail business through Jio-Mart and becoming a strong competition to leading ecommerce platforms like Amazon and Flipkart.

According to Amazon, it holds a 3.58% stake in Future Retail Limited as it had acquired a 49% stake in the promoter group entity of Future Group’s retail business, Future Coupons. The company further claims that the selling of a significant part of Future Groups business to Reliance is in breach of the terms of their contract. 

The Emergency Arbitrator of SIAC passed an interim injunction award favoring Amazon and stopping Future Group from taking any steps in relation to the transaction with Reliance. The matter was then brought in front of a Single judge bench, Judge Mukta Gupta in Delhi High Court with a prayer of issuing an ad- interim injunction against Amazon.

Initially Harish Salve argued for issuing an order to stop Amazon from interfering, he further submitted that the Emergency award was not recognized hence it is not binding under the Indian law. To this Adv. Subramaniam contended that the award was passed after considering the Indian law, he justified it on the grounds of Sec 2(8) of the Arbitration & Conciliation Act. He even questioned the maintainability of the ongoing suit.

The Hon’ble court questioned the parties on the law in relation to the concept of non-signatories to the arbitration agreement and then adjourned the hearing for the day. 

PROCEDURE FOR ARREST IN CRPC- WAS ARNAB GOSWAMI’S ARREST LEGAL?

Arnab Goswami was recently arrested by Mumbai Police under Section 306 of IPC for allegedly abetting the suicide of Avnay Naik- who reportedly designed the sets of Republic TV.  The suicide was committed in 2018 and three people including Arnab Goswami were named in the suicide note in which Naik alleged that his dues were not paid by the channel. 

Chapter V of Criminal Procedure Code, 1973 deals with the aspects of arrests. When a person is arrested, he/she is taken into the custody of an authority permitted by law and is then asked to answer the charges against him/her. An arrest can be made by a police officer, magistrate or any private person as per the provisions of CrPC.

Section 41 of CrPC allows a police officer to arrest a person for a cognizable offence without a warrant; whereas Section 42 allows them to arrest a person for a non-cognizable offence if the person refuses to give his/her name and residence. Section 43 vests a private person to arrest in certain circumstances. Further, an arrest can be made by the magistrate as per Section 44(1). 

Section 46 of CrPC states the mode of the arrest with or without a warrant. Section 46(1) states that, “in making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action”

Section 50 of CrPC states that, “Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.”

Arnab Goswami was arrested for abetting suicide which is a cognizable offence. Therefore, as per Section 41 of CrPC, Police Officers did not acquire any warrant and moreover, the grounds of his arrest were informed to him. Additionally, as per the videos released in the public domain, Mr. Goswami was seen to be accusing the police of physically assaulting him. However, as per Section 46 of CrPC, the Police are permitted to touch the body of a person if he has not submitted to the custody by word or action. He was demanding to seek medical assistance before the arrest, however, section 54 of CrPC has laid down mandatory medical examination of the arrested which would have fulfilled the concerns. Thus, the arrest of Mr. Goswami prima facie appears to be legally performed. However, the arrest in the mentioned case was to be made a long time ago therefore one can reasonably question the motive behind this act. Even after two years of the complaint being filed, Mr. Goswami had not been arrested which depicts the failure of the justice system in India. 

The existing political influence on state police’s action renders the public at large helpless and devastated. As of yesterday, the Bombay HC denied Mr. Goswami’s bail application. 

JUDICIAL ACCOUNTABILITY IN TIMES OF COVID-19

Independence of the judiciary is one of the essential traits of a democratic government. However, this does not mean that the judiciary, i.e. the judges or court officials should have unfettered power.  Judges too must uphold the highest standards of integrity and be held accountable to the public. Where judges or court personnel are suspected of breaching the public’s trust; fair measures must be in place to detect, investigate and sanction corrupt practices. Formerly, several attempts have been made in the form of the Judicial Accountability Bills of 2006 and 2010 but these bills never saw the light.

In the past, several allegations have been made against judges for misconduct. In lines of the pandemic too, several questions were raised against the judiciary for hearing certain cases at great urgency, while keeping other similar matters pending without any hearing. Such practices make the public lose their faith in the justice delivery system. 

Through the 2018 verdict of Swapnil Tripathi v Supreme Court of India, the Court laid down elaborate guidelines and modalities for live-streaming court proceedings. The Court held that the Supreme Court Rules, 2013 will have to be suitably amended to provide for the regulatory framework for holistic live-streaming as an extension of the principle of open courts and for dissemination of information in the widest possible sense, thereby imparting transparency and accountability to the judicial process. 

This declaration made by the Supreme Court two years ago has now come to light. Several High courts like Madras and Gujarat have already started live-streaming certain matters. The SC accordingly, on 4th November, set up a panel to formulate rules for regulating the live streaming. However, several judges including CJI Bobde have claimed the process is susceptible to abuses and the Court until now had been reluctant in allowing the same. 

CONSUMER COMMISSIONS CAN ALSO HEAR BUILDER- BUYER DISPUTES

Acquiring and purchasing Real Estate is a major decision for a common man. People have often questioned their investment security while making such decisions. The Real Estate (Regulation and Development) Act, 2016 also known as “RERA” is a legislation created to solely protect the rights of real estate buyers by ensuring that their investment in the ‘under construction projects’ is protected. 

However, it has often become confusing to understand if the buyer should approach the RERA authorities for redressal or whether the buyer should seek remedy under the Consumer Protection Act, 2019 which protects the rights of all those who are consumers of any goods and services. Hence, the jurisdiction of both the forums is unclear. 

Amidst which, an even important question arises, i.e. Whether filing a complaint under one of the forums vitiates power of the other? And whether the same is barred by law, i.e. by the RERA Act?

To understand this better one needs examine who can file a complaint under these respective acts. Under S. 17 of the Consumer Protection Act 2019, any ‘consumer’ can file a complaint, the meaning of the word consumer is defined u/s 2 (7) of the same act. Under S. 31 (1) of the Real Estate (Regulation and Development) Act, 2016 any ‘allottee’ may file a complaint, the word allottee is defined u/s 2 (d) of the same act and means the person to whom a plot, apartment or building has been allotted or sold. 

These two definitions overlap in their meaning since an allottee is also a consumer. Therefore, it depends on the individual to approach either of the forums. However, certain provisions (S. 79) under the RERA, 2016 bar the jurisdiction of civil courts to take up cases that should be dealt before the RERA Tribunals. 

Hence, can a Consumer Commission deal with a case where the consumer is an allottee and the Builder Buyer Agreement is in question? The Supreme Court in the case of Imperia Structures Ltd. Vs. Anil Patni [CIVIL APPEAL NO. 3581-3590 OF 2020] has answered this in affirmative and held that Consumer Commissions can also take jurisdiction of Builder – Buyer Agreements.

FREE VACCINE PROMISE NOT A VIOLATION OF MODEL CODE OF CONDUCT

Pursuant to a direction of the Hon’ble Supreme Court, the ECI in 2013 framed certain guidelines for election manifestos of political parties. These guidelines were incorporated as Part VIII of the Model Code of Conduct and they are applicable from the date a political party issues its manifesto.

Firstly, as per the guidelines the manifesto shall not contain anything repugnant to the ideals and principles enshrined in the Constitution and shall be consistent with the letter and spirit of other provisions of Model Code.

Secondly, in light of the Directive Principles of State Policy enshrined in the Constitution that enjoin upon the State to frame various welfare measures there can be no objection to the promise of such welfare in the election manifesto. However, political parties should avoid making those promises which are likely to vitiate the purity of the election process or exert undue influence on the voters in exercising their franchise.

Lastly, in interest of transparency, level playing field and credibility of promises, it is expected that manifesto also reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirement for it. Trust of voters should be sought only on those promises which are possible to be fulfilled.

Advocate Saket Gokhale filed a petition on 22nd October before the Election commission of India requiring the commission’s attention towards the comment made by the Bharatiya Janata Party’s leaders which promised free Covid-19 Vaccine to all the people of Bihar. 

The petition highlighted that the statement was not made by the leaders of BJP polling in Bihar but by the Union Minister of Finance Smt. Nirmala Sitharaman, which was objectionable and misleading. Secondly, the petition objected to the action of posting the comment via twitter from the official BJP handle.

The main ground of the petition was that the statement made by the political party is in ignorance of the Model Code of Conduct and of Article 14 of the Constitution of India since each and every state and every individual therein is equally entitled to access the vaccine. The petition stated that in the absence of any official policy by the Union government, such promises are baseless.  

Whereas, the political party’s reply to it stated that, since public health being a state subject the state governments can decide the course of action and hence make promises for the same.  

Further, in reply to this petition the Election Commission on 28th October waived the objections and held that the statements and promises made by the party do not violate any code of conduct specifically those mentioned above. Hence the Election Commission of Indian disposed of the petition. 

(Food for thought- What truth will the above-mentioned statement hold for a common man’s understanding and is it likely to exert undue influence on people? – will be added in the slides) 

MADHYA PRADESH HC’S ORDER RESTRAINING PHYSICAL POLL, STAYED BY SC

Bihar State Elections are the first election in the country and the biggest one globally since the pandemic, the first phase of the elections will begin from 28th October, 2020. Several changes and guidelines to maintain norms of social distancing have been observed by the Election Commission keeping in mind safety of the voters and poll officials. The voting timings have been extended. An hour towards the end is reserved for Covid positive patients so that they are not deprived from participating in the democratic process. 

According to the Election Commission of India, 7 lakh hand sanitizers, 46 lakh masks, 6 lakh PPE kits, 6.7 lakh face shields and 23 lakh pairs of hand gloves have been arranged for the polls. Postal ballot facility has also been made available wherever required on request. Campaigns will also be restricted. Door to door campaigning is permissible but maximum 4 people can accompany the candidate. Apart from these large halls, thermal screening, compulsory masks throughout the process are other protocols in place.

Political campaigns have begun in Madhya Pradesh. Subsequently, a PIL had been filed in the High Court of Madhya Pradesh highlighting that physical campaigning by political parties was causing increase in the spread of COVID-19. In addition, the PIL also stated that nobody from the public is taking any action against these political parties. After hearing this PIL, the Gwalior bench of Madhya Pradesh High Court passed an order restraining any physical gathering for poll campaign amid the pandemic. 

The High Court’s order stated that the political parties will have to get permission from the district magistrate and if the parties want to hold any kind of physical gathering, a certificate from the poll panel will be required establishing that virtual campaign was not possible under any circumstances. Furthermore, the political parties will have to deposit money for procuring masks and sanitizers for the people taking part in the campaign. In its order, the High Court had also directed the District Magistrates of Datia and Gwalior to assure that FIRs are registered against former Chief Minister Kamal Nath and Union Minister Narendra Singh Tomar for alleged violation of COVID-19 norms during election campaigns.

Three pleas were filed against the HC’s order by Election Commission of India, by BJP leader Pradyuman Singh Tomar and Munna Lal Goyal and heard by Justices A M Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna. The primary grounds of the same being, violation of “right to conduct elections” and disregarding the guidelines made by ECI. On 26th October, 2020 SC while staying the order of Madhya Pradesh HC, declined to decide or elaborate upon the contentions or merits of the case raised by the appellants. 

Further, it directed the Election Commission of India to take cognizance of issues raised in the petition before the High Court and list it within six weeks. The rationale behind the non-interference was adherence to Part XV, Article 324, 329 of the Constitution which bar judicial interference in the electoral process and fixate the duty on ECI. Hence SC’s order restored the electoral process, however the ECI can take further actions in determining the validity of issues raised.

WHY ARE STATE GOVERNMENTS WITHDRAWING ‘GENERAL CONSENT’ FOR CBI INVESTIGATIONS?

The Central Bureau of Investigation (CBI) is constituted under the Delhi Special Police Establishment Act, 1946 and its jurisdiction to investigate primarily extends to the Union Territories as per Section 2 of the DSPE Act but the same can be extended by the Central government under section 5 of the act to the states, given the state government has given their general consent under Section 6 of the act. The state governments can through a notification under section 6 withdraw their consent but it will only have a prospective effect and will not affect the ongoing investigations. After which for CBI to investigate new matters within a state, it will have to demand a case specific consent and when denied that consent too, it can approach the Courts for carrying out the investigation. 

On 21st October, the Maharashtra Government revoked its general consent under Section 6, the purpose behind the same was to protect the powers vested with the local state police and preserve the authority of state government. A few months ago, the CBI took over the Sushant Singh Rajput suicide case and the drug case. Recently, in the TRP scam case, the Mumbai police is already doing an investigation but the CBI has accepted an FIR in Uttar Pradesh based on a complaint for investigating the TRP scam. 

As per the procedure, if the state government has revoked its general consent and is not allowing a case specific investigation by CBI either, and if the case is partly in two or more states then the CBI can register the case in one state and seek assistance from the other state government. Similarly, in the TRP scam case one of options with CBI is to seek assistance of Maharashtra government, since the case is on a related subject matter. 

Maharashtra Government’s decision makes it the 5th state to have withdrawn the consent. In the past, Andhra Pradesh, West Bengal, Chhattisgarh and Rajasthan too have taken the same step. The key reason behind this is that the Central agency has on several occasions been alleged of misuse for “political purposes” and corruption. It has also been accused of specifically targeting the central government’s political rivals. For example, AP government’s move is considered as a consequence of the political tension between BJP-led Centre and Telugu Desam Party and Income Tax raids that were instituted against several leaders of the latter party. Similar instances were observed in the other states too. Formerly the Apex Court observed in the famous Coal scam case, the CBI as a “caged parrot” and “its master’s voice” 

Hence the revocation of consent can in certain instances be in the state’s interest, whereas in other cases it might not be in the people’s interest, who may demand interference by an independent agency.

TRP ASSESSMENT: IS INDIA REALLY WATCHING?

TRP stands for “Television Rating Point or Target Rating Point, it is the metric used by the Advertising and Marketing agencies to assess the viewership. TRP shows the amount of time spent by people of different socio-economic categories in watching a particular channel. In India TRP is recorded by the Broadcast Audience Research Council (BARC) using Bar-O-Meters that are installed on televisions in appointed households. The Information & Broadcasting Ministry notified the Policy Guidelines for Television Rating Agencies in India on January 10, 2014 and registered BARC in July 2015.

The problem at hand is that currently there exist barometers in merely 45,000 odd households that represent the TV viewership of the entire country. Since the sample is small, the TRP data can easily be rigged by the person broadcasting, once the houses where the devices are installed are located i.e. one can then bribe the viewers to watch their channels. Moreover, since India follows the international standard of one minute to attain TRP, the broadcaster can ask the cable media operator to show their channel first whenever a person turns on the TV. The 1-minute standard can thus be easily met.

Recently, allegations arose against several news channels for manipulating TRP by altering with the sampling metering services and acquiring paid viewership. FIRs were registered against them by Mumbai Police for offences of criminal breach of trust (Section 409), cheating (420) and criminal conspiracy (120B) under the Indian Penal Code. There is an absence of any specific laws to punish the perpetrators. In the past the BARC too, has filed FIRs in various police stations against the agents/ suspects involved in panel tampering/infiltration but its efforts have been hampered due to absence of any law that deals with the same. Thus, there is a need for an exclusive legal framework to address the issue. Additionally, journalists must refrain from displaying merely TRP-centric news and must adhere to journalist’s principles and ethics.

Free access to drinking water at any hotel- Indian Sarais act, 1867

The Sarais act is an ancient act enacted under the British rule and it provides for regulation of Sarais or buildings used in the Mofussil areas established under British raj for shelter and accommodation of travelers. 

What does Sarai mean in the act?

According to the act, Sarai means where travelers come and take shelter or stay for some period of time or when such buildings are used by travelers for accommodation, that building is known as Sarai. 

Section 7(2) of Indian Sarais Act 1867 is a unique provision that states that the keeper of a Sarai shall be bound at all times as and when required by any Magistrate for accommodation and give them free access to the Sarai and allow them to inspect the same. 

The unique provision that built upon this section is that the “free access” clause above is interpreted for any person to ask and consume water or use the washrooms of such hotels for free at any hotel at any time.

Is it beneficial or should it be repealed? 

There have been various advantages of this act like access to free water in any hotels but this law also has been requested to be repealed for being obsolete as per the 248th Law commission report. Since the hotels are already registered with specific state legislations and the areas aren’t segregated as per Mofussils anymore.

Although, the act hasn’t been repealed till date and it is one of the few lesser known social legislations still in force from the British rule