By Aditi Agrawal and Nikhil Pahwa

All that Justice for Rights, the organisation that filed a PIL against Sacred Games, wants is for the government to come up with laws to regulate content online. MediaNama spoke to Harpreet Singh Hora, the lawyer for Justice for Rights, to understand what motivates the group, and why they want content online to be regulated. Excerpts from the conversation, edited for brevity:

MediaNama: What is Justice for Rights?

Harpreet Singh Hora: This is basically a group of students of faculty of law, and it is run by the students themselves. It has two patrons: one of them is some retired Justice of a High Court and other one is Additional Director General of Border Security Force. They had started this organisation for the welfare of paramilitary forces. I guess they also had adopted one or two families in the state of Uttar Pradesh, families of those gentlemen who had been martyred in operations, those who are operational casualties of those paramilitary forces. They had then connected with some schools, some private schools or some medical institutions for their pre-medical care and their children’s free education. This is how I came to be connected with these people.

MediaNama: Which are the other cases that Justice for Rights has taken up?

Harpreet Singh Hora: There was this issue, if you remember, in the last year [where] people from Uttar Pradesh and Bihar were being beaten in the state of Gujarat last year because of an alleged rape case. That’s somewhere around September or October. These guys [Justice for Rights] had filed a petition in the Supreme Court regarding that as well.

[There was] this petition they had filed was against the use of modified silencers and pressure horns in the North Campus of Delhi University. That was my first project with them. I am their counsellor in that case. The matter is still going on. The Delhi Police has filed six thousand challans in the forty-eight days in the last month from June 4 to July 22. The matter is ongoing; so we’ll see what happens. Our basic prayer is to put a ban on the manufacture, sale and purchase of pressure horns and modified silencers.

MediaNama: How did the petition against Sacred Games come about?

Harpreet Singh Hora: They had no idea how these online streaming platforms [worked]. So Sacred Games and I believe there is a show named Sparta [Editor’s Note: Spartacus]. There was a lot of violence in that show. While they were watching that show, they wondered about what are the regulations that allow them such flexibility in their shows. I told them that the best thing to do is you should file an RTI, first see that who gives them licence because once we know who gives them the licence, then we can have the licensing terms and agreement. They might have been allowed certain flexibility beyond the scope of Cinematograph Act as such, the CBFC.

They had filed two RTIs [as] I had told them. One was who is the licencing authority, and the other one was which are the regulations applicable on them. And the government responded to it saying that we do not know who the licencing authority is.

This obviously was a shocker to me. Because what happens is that there is a division of the I&B which deals with the up-linking and down-linking from satellites of the signals. The government, the I&B [ministry] says we do not know who the licencing authority is.

Second thing, when we had asked them what regulation is applicable to this, they mechanically gave a reply that, ispe toh who Section 79 hi lagega IT ACT ka, aur toh kuch lagega nahin [Section 79 of the IT Act, and nothing else, will be implemented on this]. Section 79 deals with intermediaries. I am 100% sure, that they [streaming services] are not an intermediary. I discovered that this is an area which has still not been dealt with properly.

We had filed a petition in the High Court last year. The High Court, to be very honest, on the first day was not convinced, because they were like, aisa ho kaise sakta hai ke kuch bhi bina licence ke chal raha hai [how is it possible that things can go on without a licence]. We had asked them to seek instructions and seek a reply because what I had told them ki aap at least status report, reply le lo government se [that at least seek a status report from the government], what does the government have to say. If the government says that whatever has been given to you in the RTI is not correct or it was due to oversight or due to error or ignorance or whatever, if the government says they have a licence, they have a regulation, etc., we are okay with it, we do not have a problem.

Our parameters were four-fold. People asked ki aapko obscenity se kya problem hai, vulgarity se kya problem hai [what is your problem with vulgarity, obscenity?]. Even if it is morally, ethically not fine, this is a very subjective issue, etc. So that’s completely irrelevant. I do not care, whatever it is. Content, obscenity, vulgarity is the fourth pillar. My first three arguments are very objective, whether they carry a licence or not. The answer is yes or no. There is no second thought about it. Whether they have a regulation or not, and if yes, what is the regulation; the answer is yes or no. Certificate; whether they carry a certificate; yes or no.

MediaNama: Were these RTIs filed with MeitY?

Harpreet Singh Hora: I don’t know … we had filed it with I&B. I&B had also consulted MeitY, I believe, in this.

MediaNama: Viewing content on VoD platforms is a private act. It is not broadcast. You are effectively choosing to watch it. Doesn’t restricting this content or putting these platforms under a licence amount effectively amount to restricting what people watch in the privacy for their homes? When the Supreme Court of India heard the case on pornography, the Government of India had said that they don’t want to do moral policing.

Harpreet Singh Hora: I was also in the matter of right to privacy. And we were briefing, my boss and me, we were briefing the AG back at that time in 2017. This is Justice Puttuswamy judgement case.

This is right to privacy all over. See, this issue has just started. After the Puttuswamy judgement, this has been settled that a [wo]man’s home is his[/her] castle. Kerala High Court has settled it that Cinematograph Act won’t apply. I believe this issue that whether this is public exhibition or not would have erupted into that.

On that limited point, this would come to be settled from the Supreme Court that this is a private act. For example, if you are 18+ or 21+ or whatever the regulation is, and accessing pornography in your private space, it is okay with the law. As far as the law is concerned. I am not talking about the executive action because the executive action, I think on Jio or maybe on Airtel, whichever the carrier is, [is that] they have blocked some pornographic sites. I don’t know what happened, what was the case, whether the block ever got lifted or not, but this has happened, and it has happened by an executive action. This has not happened with the law or a legislation.

If you are accessing pornography in a private space on your private device, and until and unless you force somebody to consume pornography, it is okay with the law. This is one of the major aspects which would break this petition away from cinematography. And this is a private act, not a public act.

The second thing which will also come into this: when we talk about certification is that, we cannot say that we are coming with. They would say that we are coming with signposts. Signposts are, for example, my nephew is 7-8 years old; my sister and my brother-in-law have a different channel on Netflix when they watch it on TV. And the kid has a different channel that is under eight, under seven, under six, whatever it is. So for 16+, they have a different signpost, 13+ they have a different [standard] because this issue came up in while we had discussed about Charlie and Chocolate Factory. Now we had said that this is religiously hurting one of the communities when there was one particular scene in that. But this show had a rating of 7+. The question also would be, who would judge that. They say we have a self-regulatory code, but whether self-regulatory code would be under the broad guidelines laid down by any statutory authority or not, whether they can come up and carry on with this self-regulatory code, and once they have screened it, whether then that particular show and particular stats would come into picture and that would be judged by the court, or this self-regulatory code also had to be regulated.

MediaNama: But this also hinges on the idea of whether this is broadcast or it’s private viewing, right? Because even today, even someone under the age of 18 can go and type out a pornography site URL and view it. So the intent is on the individual to go and watch it. This is private viewing, it’s not public viewing. So, doesn’t this argument also hinge on the assessment of whether this is public or private?

Harpreet Singh Hora: It does. And I’ll give you an instance for this. Let’s say in certain X state, consumer liquor by people under the age of 21 is not allowed. But still they have access to liquor, still they are consuming liquor. That becomes an illegality. What we are saying is we do not have any provision saying that this is legal or illegal. That is where this gap is. We do not know what is it; whether that is legal, whether that is illegal. If I say that is illegal, you say that is legal, what is the provision? On what parameters are we judging it?

MediaNama: How do you distinguish and why do you distinguish a VoD service provider from, let’s say, a porn site? And in that sense, if porn is as the basic example of someone… of content which might be regulated, but it seems as a private act and of viewing it and is not effectively regulated. Is there any provision? Then on what grounds would you regulate VoD providers. That’s the basic thing that I am trying to understand.

Harpreet Singh Hora: When we talk about Ofcom, there is a survey by Essentials, right? You will probably get that data on the internet as well, I pulled it out from the net, from some site. So they use this term as on TV. Whether these parameters are to be same as what is on the TV that, or whether these would be flexible. So this is one of the major important questions into this. Once the court says that this is a private act and not a public, this is for private exhibition, not for public exhibition, the next question would be whether the parameters for a private exhibition can be broader and more flexible than what it is in the public exhibition. And the answer highly likely I believe in the interest of justice should be yes. For example, even if the court says that if you are above 21, then consumption of pornography in a private space is allowed. I still have a problem with these channels that they have been given a free run even then.

Why should we allow even any pornographic site without any licence in this country. You are using a satellite, you are using a public resource which is the spectrum, you do not carry a licence; or say you are running a legally bad online platform. Whereas a correct position is that you are running a platform which does not have the sanction of law, or just that you are running on a field which does not have a regulation, the law, because the ministry say we do not have a position, what do we do. So there has to be some provision governing it.

MediaNama: Let’s say if things go in that direction, that you, you seem to want them to, then the outcome effectively would be that all video streaming services would need to comply with regulations in India or need a licence to operate it in India. In effect, MeitY and ISPs would be asked to block everything that is video based but does not comply with the rules and guidelines. Is that the outcome you are looking at?

Harpreet Singh Hora: See, at this juncture, what we have is only questions. Whether there can be a mechanism, like you have regular movies and regular cable channels; whether there can be any mechanism which the law allows for having a presumptive action or not.

For example, the major question is let’s say you come up with some movie, let’s say there was a movie called Tashkent Files. Tomorrow they come up with a movie let’s say Delhi Files. Now the censor board says no, you cannot go ahead with this movie as far as the public exhibition is concerned. Agreed. Now whether this would be allowed on these online platforms and this private exhibition or not; they are accessing it through some VPN or through some illegal means; that is a different question altogether. That is the parameter would be flexible enough to have access to the Delhi files movie or the documentary through these platforms or not; if yes, under what provision; if no, under what provision.

So that is the basic question that we have that if something is not allowed in public exhibition, whether this should be allowed in private exhibitions through these channels or not; we do not know the answer yet.

MediaNama: How does this play with the Shreya Singhal judgement?

Harpreet Singh Hora: See, what we are trying to do is, when we talk about Shreya Singhal, it focusses more on freedom of speech and expression and how 66A is surveying it. In the sense, that provision was being misused by the executive authority that somebody has a different against this, some political view has some different …

MediaNama: But somewhere it lays down, effectively it lays down the contours for executive action to restrict people as well.

Harpreet Singh Hora: I’ll tell you. For example, you have 66A in place today. You come up with this movie of Phoolan Devi, or you come up with this painting of M.F. Hussain; a movie of the painting of M.F. Hussain. Now we have a problem with the executive action. You go to the court, you tell the court that I am Mr M.F Hussain, somebody has filed an FIR against me under section 66A. The court would judge you on 66A and 19(1) and 19(2). So except the constitution, at least you have a provision of 66A. Let us say the court says no; this is more towards 19(1), the restriction which the executive authority says that we have put on to it. It is not a reasonable restriction; the authority is going overboard, and 66A is not applicable. All the courts say 66A itself is not as per the provision or as per the provision of the constitution. This painting or this movie should go ahead.

What else the provision in the case of these platforms; you tell me. There is no provision; there is no regulation. What would you do? You would go to the court and what would you tell the court in this case. Ask them, because the ministry says you do not have a regulation. Under [Article] 21,  you cannot deprive somebody until and unless you have a procedure established in that law; which means that you must have a statute on that.

MediaNama: No but, but effectively Section 69  (of the IT Act) does govern the take down of content even on these platforms.

Harpreet Singh Hora: It governs the blocking of the content. Now if you access that, I am saying those are punitive sections. The same movie which was not allowed to go ahead on a regular movie platform for public exhibition, now people have access to it.

MediaNama: But then the provision is applicable only to public exhibition and not to private. In that case …

Harpreet Singh Hora: Right. That is what we are saying. Then the first thing we need to see is, whether this is public exhibition or private exhibition has this question being settled by the law? No. But this is what I say, this is what you say. For example, what I say today is …

MediaNama: In case of pornography it has, if you look at …

Harpreet Singh Hora: No, I don’t think so. I don’t think that this has been settled yet. But then even on 79, I had a discussion with [name redacted] that day. He says, because he is an expert in these things, that 79 ispe lagega hi nahin [Section 79 is not applicable in this case]. Ministry says, haan ji, 79. [Yes, Section 79 will be applivable.] But we have to have some authority saying that 79 lagega yah nahin lagega [whether Section 79 will be applicable or not]. Until and unless the Supreme Court or any high court says no, 79 won’t apply, then the Ministry has to tell us what the regulations are.

MediaNama: What are your views on self-regulation?

Harpreet Singh Hora: So as far as self-regulatory code is concerned, I’ll tell you: best of legal sense is whether self-regulation is any type of regulation. If I tell you that I will drive my car on left side, that is a self-regulation, but I need to have a law saying that left means left, it does not mean right. Even if you are self-regulating, that is a welcome move. What are the provisions for that.

MediaNama: You need to look at the proportionality of restrictions that you are putting in, and obviously …

Harpreet Singh Hora: Right. There has to be some guiding principle for that. For example, you say morality and decency are not a concern for us. I personally might agree with you, but whether the court which the regulatory body desires to impose, whether they have this content, whether they have these criteria or not, morality or decency; that is what the body would decide, that is what the court would decide. So self-regulation in restricted sense won’t do any good, but although that is a welcome step. Secondly, what do they even mean by self-regulation. See, at the end of the day, the ultimate aim of a corporate is to maximise its profits.

Now when we say that they have been given a free run, they will also make sure that our profits … we are famous today for the reason that we have something different from the other movie producers, from the other movie broadcasters.

MediaNama: Well, there are two aims of a business. One of them is also sustainability of the business.

Harpreet Singh Hora: Right, right. So even if they come up with self-regulatory code, I believe no corporate would take this suicidal step to destroy the essence of their own platform itself.

MediaNama: Doing something illegal in that sense would impact sustainability even if it hurts profits and they might choose to do that. They might not do something illegal, because even if doing something illegal impacts maximises profits, it will still impact sustainability.

Harpreet Singh Hora: Right, right, could be one of those.

MediaNama: What are your views on lowering the barrier for other platforms rather than increasing the barriers on the internet?

Harpreet Singh Hora: So personally I feel, seeing the trend from Avnish Bajaj, seeing the trend from Phoolan Devi, seeing the trend from M.F. Hussain; I am seeing the trend which has impact on M.F Hussain judgement as well.

MediaNama: What is your ideal outcome here? 

Harpreet Singh Hora: What I am really expecting from TRAI is, let’s not be very harsh on them as well. Even if they come up with certain code which is based on the broader lines of what is laid down in the constitution, we are okay with it; we do not have a problem.

If the TRAI comes and says that we won’t, because we also have to make sure that there would be some people intervening from the other side who would say that we are apprehensive that we, the Justice for Rights are as such trying to put the weapons in the hands of the TRAI or the Ministry of I&B or some other executive authority to curb the freedom of speech and expression. This is what we do not intend to do basically.

What we intend to do is, even if an executive come up with a body or with a committee or anything, at least the committee should know what are the principles against which they have to judge the right thing.

MediaNama: Well, effectively TRAI doesn’t have jurisdiction over content under the TRAI act.

Harpreet Singh Hora: Yes.

MN: But, but I understand that what you are all expecting is some kind of executive action that brings these platforms under regulation.

Harpreet Singh Hora: Right.