A recent judgment on the airing of ‘low value’ television programming misinterprets the proportionality doctrine and raises the question: should the state be giving advice to adults?
A few weeks ago, the Delhi High Court decided a case which is capable of having far-reaching policy implications for the future of free speech in India. The case, Viacom 18 Media Private Ltd & Anr. Vs. Union of India, concerned a 10 day ban imposed by the Central government on the television channel “Comedy Central,” for broadcasting two programmes last year which were allegedly “vulgar, obscene and offending to good taste.” On May 24, a single judge of the Delhi High Court upheld the ban by invoking the constitutional doctrine of “proportionality.” As the ban has been temporarily lifted and the case is presently pending in appeal, it may be worth discussing some of the larger potential consequences of the court’s reasoning.
The Delhi High Court’s judgment suggests that in May 2012, Comedy Central broadcast a show in India called “Stand Up Club” at 8.52 p.m., in which an unnamed comedian (probably Jon Lajoie) sang a song entitled “Show me your genitals.” Two months later, Comedy Central broadcast another programme in India called “Popcorn” at 7.57 a.m. where a hidden camera captured passer-by reactions to a prankster’s lewd actions in public.
Timing of broadcast
In constitutional law terminology, these programmes can be considered “low value” speech — with no redeeming literary, scientific, or artistic qualities. However, even “low value” speech is entitled to protections under the Constitution. In fact, counter intuitively, the Supreme Court has a remarkably liberal record in cases involving “obscenity.” In the Comedy Central case, it is important to emphasise that what was prohibited should not have been the content of the programming but the timing of its broadcast. Both shows were probably distasteful, insensitive and unfunny, yet the idea that the state needs to paternalistically protect its adult citizens from programming of this kind is ludicrous. True, the Constitution tethers the right to free speech with numerous exceptions, consequent to which the state is within its bounds imposing “reasonable restrictions” on indecent or immoral speech. However, an outright ban prohibiting adults from viewing Comedy Central stretches the limits of “reasonableness.” The state has no business telling adults what they can and cannot watch, so long as nobody was harmed in making the programme.
It is the state’s duty though to protect children and to empower the parent, to ensure that programming of this kind is broadcast when typically only adults can view it, and when parents can safely prohibit their children from watching it. That was the holding in a famous decision of the U.S. Supreme Court in 1978 (FCC v. Pacifica Foundation), where a New York radio station broadcast a 12-minute monologue containing several filthy words at 2:00 in the afternoon. The court upheld regulations aimed at channelling the monologue to “hours when the fewest unsupervised children would be exposed to it.” In the Comedy Central case, both programmes were apparently aired at times when they were not outside the reach of children.
However, the Delhi High Court’s decision in the Comedy Central case may potentially have serious consequences for free speech in India. Among numerous arguments made before the court, Viacom contended that the government’s 10 day ban was “disproportionate” to the wrongdoing. The doctrine of “proportionality” is now an internationally recognised constitutional-law device under which courts strictly scrutinise the legality of government actions. Derived from courts in North America and Europe, “proportionality” jurisprudence calls on a court to decide whether the government used the “least injurious” means available to it while depriving a person of his fundamental rights. However, misinterpreting the proportionality doctrine in the Comedy Central case, the Delhi High Court worryingly held that it would only find government censorship disproportionate if it “shocks the conscience of the court.” This is highly problematic — after all, fundamental rights will become exceedingly hard to enforce if every government action must go to the unthinkable extreme of “shocking the conscience of the court” in order for it to be held illegal.
The Delhi High Court today is one of India’s premier courts. Like the D.C. Circuit of the U.S. Court of Appeals, its judges find pride of place on the Supreme Court. Several of its past decisions have resonated across India — its Naz Foundation decision decriminalising homosexuality, and its decision quashing warrants of arrest against the late M.F. Husain for his nude paintings, are prime examples. In the Comedy Central case, the court perhaps forgot that its decision will also impact how other cases are decided — cases involving genuine political speech or criticisms of government. Though the programming involved in the case was arguably indecent, the court’s cavalier treatment of the right to free speech there threatens to spill over into cases where it is not merely a silly song that is at stake.
(Abhinav Chandrachud is a doctoral student at Stanford Law School.)