Lex Witness in association with the Trade & Regulatory Compliance Practice Desk at Saikrishna & Associates brings to you a detailed analysis on select updates and notifications.
On 3rd July 2024, the Ministry of Information & Broadcasting (“MIB”) issued its third advisory on the mandate of the Supreme Court on Self-Declaration of Advertisements (“New Advisory”). The New Advisory supersedes MIB’s previous advisories on Self-Declaration Certificates (“SDC”) for advertisements which were issued on 3rd June 2024 and 5th June 2024.
As reported in our blog in June 2024, the Hon’ble Supreme Court, in the case of Indian Medical Association & Anr. v. Union of India [WP(C) No. 645/2022] had through its order dated 7th May 2024 mandated submission of a self-declaration by an advertiser/advertising agency on the dedicated portals of MIB before the printing/airing/display of any advertisement. The order also required all advertisers to furnish proof of uploading the self-declaration to the concerned broadcaster/printer/publisher/T.V. Channel/electronic media.
Thereafter, the MIB issued two circulars/advisories, on 3rd June 2024 (“First Advisory”) and 5th June 2024 (“Second Advisory”), to give effect to this directive of the Supreme Court. As per the First Advisory, every advertiser and advertising agency had to submit a ‘Self-Declaration Certificate’ (“SDC”), for any advertisement published on or after 18th June 2024, attesting that the advertisement does not contain misleading claims and complies with all relevant regulatory guidelines. This advisory also required every broadcaster/publisher to ensure that the advertisers had submitted the SDC before airing the advertisement.
The Second Advisory amended the First Advisory to include Radio Stations within its ambit. Further, as per the Second Advisory, the mandate on uploading SDCs did not apply to classifieds (other than those directly related to consumer products and services), personal advertisements, statutory advertisements, public information notices, tenders and advertisements related to public functions.
In addition to the above, the MIB had also issued guidelines requiring advertisers/advertising agencies to submit additional information and documents along with the SDCs on the Broadcast Seva portal (for TV and Radio Advertisements) and the Press Council of India portal (for print and digital/internet advertisements).
The New Advisory supersedes the First and the Second Advisories and restricts the mandate of uploading the SDCs to advertisements for products and services related to the “food and health” sectors. As per this New Advisory, the SDCs for these advertisements would have to be uploaded annually on the MIB portals and the proof of uploading the self-declaration must be made available to the concerned entities that are involved in publishing the advertisements for their record. Further, this advisory clarifies that the responsibility of ensuring that the advertisement complies with Indian laws, rules and regulations is on the advertisers/advertising agencies.
The previous advisories and guidelines issued by the MIB had exceeded the remit of the order of the Supreme Court in many respects, particularly in stipulating the requirement for the publishers/broadcasters to ensure the submission of SDCs before airing/publication of an advertisement. While the Supreme Court had issued the order for enforcing the fundamental right to health, the Supreme Court’s directive of uploading the self-declaration was understood to be extending to every advertisement. Later, in light of the industry representations, the MIB sought inputs from the Solicitor General of India before issuing the New Advisory.
The New Advisory has eased the onerous procedural requirements stipulated in MIB’s previously issued advisories bringing the much-needed respite for all stakeholders involved in the publication of advertisements. The New Advisory has also restricted the sectors for the implementation of the mandate to ‘food and health’ sectors only. Given the supersession of the First and the Second Advisories, the requirement for the broadcaster/publisher to ensure that the advertisers have submitted the SDC before airing the advertisement has also been done away with.
While the New Advisory has addressed the concerns of the industry, at this stage, there is ambiguity regarding the products and services that would be considered to be “related to food and health sectors”. It is also unclear whether the advertisers/advertising agencies who are required to upload SDCs for advertisements for products and services related to the food and health sectors are required to follow the guidelines issued by the MIB and submit all the information/documents mentioned in the guidelines.
More clarity regarding the implementation of the mandate on self-declaration of advertisements is expected from the Supreme Court in the next hearing in the case of Indian Medical Association & Anr. v. Union of India on 9th July 2024.
On 9th August 2024, a Single Judge Bench of the Delhi High Court, while dealing with a revision petition, passed a judgment in the case of Sundari Gautam v. State of NCT of Delhi, and held that an offence of penetrative sexual assault and aggravated penetrative sexual assault under the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) can be made out against a woman perpetrator.
The revision petition had been filed before the Court challenging the orders of the Additional Session Judge in which charges had been framed against a woman for the offence of ‘aggravated penetrative sexual assault’ under the POCSO Act.
The petitioner inter alia contended that the offence of ‘penetrative sexual assault’ under Section 3 of the POCSO Act and the offence of ‘aggravated penetrative sexual assault’ under Section 5 of the POCSO Act cannot be made out against a woman due to the use of the pronoun ‘he’ in these Sections suggesting that the legislature only intended to make a ‘man’ liable for these offences. Section 5 of the POCSO Act lists the instances when a ‘penetrative sexual assault’ would be considered as an ‘aggravated penetrative sexual assault’. As per Section 3 of the POCSO Act, a “person” is said to have committed penetrative sexual assault if inter alia “he” penetrates his penis to any extent, into the vagina, mouth, urethra or anus of a child, manipulates any part of the body of the child to cause penetration, applies his mouth to the penis, vagina, anus, urethra of the child.
The petitioner also submitted that the definition of these terms under the POCSO Act is similar to the definition of the term ‘rape’ under the Indian Penal Code 1860 (“IPC”) which can only be made out against a man.
The respondent, on the other hand, submitted that the POCSO Act is a gender-neutral legislation aimed at protecting minors against sexual offences and holding perpetrators accountable regardless of their gender. The use of the word “person” appearing at the beginning of Section 3 of the POCSO Act indicates that the said provision applies to women offenders as well.
The Delhi High Court agreed with the submissions made by the respondent and held that the word “he”, as it appears in Section 3 of the POCSO Act, cannot be interpreted narrowly.
Noting that the definition of ‘aggravated penetrative sexual offence’ under Section 5 of the POCSO Act is consequential to the definition of ‘penetrative sexual offence’ under Section 3 of the POCSO Act, the Court acknowledged that the pronoun “he”, as used in these definitions, has not been defined in the POCSO Act. The Court relied on Section 2(2) of the POCSO Act which states that the words that have not been defined under the POCSO Act but have been defined under other legislations such as the IPC would have the meanings assigned to such words in those legislations. Section 8 of the IPC states that “the pronoun ‘he’ and its derivatives are used of any person, whether male or female”.
The Court also noted that the object of enacting the POCSO Act was to protect children from the offences of sexual assault, sexual harassment and pornography irrespective of whether the offence was committed by a man or a woman. Considering the legislative intent and the broad definition of the term “penetrative sexual assault” the Court concluded that a narrow interpretation of the provision and limiting the application of such offences to a man would be illogical. As regards the comparison with the offence of rape, the Court observed that while the acts that form the offences of rape and penetrative sexual assault (and consequently aggravated penetrative sexual assault) are the same, the use of the term ‘person’ in the POCSO Act as opposed to a ‘man’ in the IPC, suggests that the relevant provisions of the POCSO Act include any offender irrespective of their gender.
Accordingly, the Delhi High Court dismissed the petition and held that the offence of aggravated penetrative sexual assault can be made out against the petitioner, even though she is a woman.
Recently, courts in India have taken action against female perpetrators and have held them responsible for offences against children. In 2021, in the state of Telangana, a woman was convicted under the POCSO Act for sexually abusing a minor.
Now the Delhi High Court has held that offences of penetrative sexual assault can be made out against a woman. This decision is important as it has expanded the scope of applicability of the provisions pertaining to “penetrative sexual assault”, which is typically associated with men, to women perpetrators.
Such decisions provide the much-needed assurance to the public that the courts would not shy away from holding the perpetrators accountable for their acts and would not be deterred by the gender of such perpetrators. The decision of the Delhi High Court demonstrates the commitment of the judiciary to foster a more supportive environment for children and protect them from sexual exploitation and sexual abuse.
While the Telecommunications Act, 2023 (“Telecom Act”) has been notified on 24th December 2024, it will come into force in a phased manner. The Ministry of Communications, vide gazette notifications dated 26th June 2024 and 4th July 2024, has brought into effect certain sections of the Telecom Act. Many provisions of the Telecom Act will be operationalized through rules. On 29th August 2024, the Department of Telecommunication (“DoT”) under the Ministry of Communication published drafts of the following four rules for public consultation till 27th September 2024 under the Telecom Act:
The draft rules suffer from the same shortcomings that the extant regime on interception is subject to, in so far as, the lack of appropriate safeguards for protecting the privacy of individuals (despite the right to privacy being recognized as a fundamental right) and the lack of meaningful and independent judicial or parliamentary oversight. Also given the wide definitions of terms in the Telecom Act describing and defining relevant and applicable stakeholders, at this stage it is unclear whether OTT communication services will be covered within the purview of the interception orders or not.
The Draft Rules also require all mobile devices to have their identification numbers (IMEI) registered with the Government, and in case of any tampering with the IMEI or device, the devices will be blocked by the Government from accessing networks.
The CTIs have to inter alia :
The Chief Telecom Security Officer has been made responsible for the implementation of these draft rules.
While the effort of the DoT to undertake public consultation on the draft rules is laudatory, there are several aspects that require further and careful deliberations. For instance, is a need to institute a specific provision in the Telecom Act itself which requires the Government/regulator to undertake a public consultation process before notification of any regulations/rules. Furthermore, such regulations/rules should have a sunset clause or a requirement to review the same every 5-10 years.
Another aspect that requires clarification is with respect to the applicability of the Telecom Act and rules thereunder to OTT communication services. The definitions of terms like ‘telecommunication services’ and ‘telecommunication entity’ under the Telecom Act and draft rules are wide enough to include OTT Communication Services like WhatsApp, iMessage, etc. within its ambit. This has understandably caused a lot of regulatory uncertainty about the applicability of the Act to such services. In case the Telecom Act and the Draft Rules are made applicable to OTT Communication Services, then the authorities could, among other things, order the interception of messages exchanged over such services which offer end-to-end encryption. Accordingly, the DoT should issue a formal clarification regarding the applicability of the Telecom Act and the rules made thereunder to OTT communication services.
The Draft Rules lack substantive safeguards against executive overreach as they mandate a review of orders issued for interception, and suspension of telecom services by authorities to a review committee headed by the Cabinet Secretary/Chief Secretary, therefore retaining executive control. The Srikrishna Committee Report in 2018 noted that the Review Committee has an unrealistic task of reviewing 15000-18000 interception orders in every review meeting held once in 2 months, which calls into question their ability to properly scrutinize these orders. The report also highlighted the need for parliamentary or judicial approval/oversight of such orders and noted that executive review alone is not in tandem with comparative models in democratic nations which either provide for legislative oversight (Germany), judicial approval (UK) or both (South Africa).
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