Cannot appoint Censor Board to regulate ‘non-film songs’, not the judiciary’s job: Delhi High Court

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad was hearing a PIL seeking the constitution of a censor board to review non-film songs, their lyrics and videos before they were released to the public through TV or social media, making it mandatory for composers of such songs to receive certification. The plea also sought a direction to constitute a body to screen every non-film song and its contents, including lyrics and videos, before it is released on the internet through any platform/application and to ban all such songs on the internet which have obscene/vulgar content with immediate effect.

The high court in its January 24 order held that there is a clear regime laid down by the central government to regulate the information/content which is available to the general public through various media platforms.

It referred to Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 to state that they apply to various intermediaries like YouTube, WhatsApp, Twitter, Facebook, etc. It observed that the Ethics Code regulates the nature of content that should not be hosted by these platforms.

“These guidelines read with the Information Technology Act also provides for offences in case of violation of the Ethics Code. In addition to offences under the IT Act, the violators can also be booked under the Indian Penal Code. Thus, the grievance of the petitioner that there is no regulatory authority/censor board to censor/review the non-film songs, their lyrics and videos which are made available to the general public through various media platforms like television, YouTube, etc. has been taken care of by the Ethics Code and the regime framed thereunder,” the high court ruled.

The high court noted that Rule 7 of the Ethics Code states that whenever an intermediary fails to observe these rules, they are liable to be punished under any law, including the provisions of the IT Act and the Indian Penal Code.

It observed that the Ethics Code also applies to news publishers and current affairs content and publishers of online curated content and other intermediaries which disseminate information on various social media/digital media platforms. The high court said that the Centre had ensured that these platforms, despite not being intermediaries, are also regulated and do not upload content that violates government rules and regulations.

“As far as television is concerned, the Cinematograph Act, 1952, and the Cable Television Networks (Regulation) Act, 1995, addresses the issue regarding regulation of content which is being telecasted on these platforms. The contention of the petitioner that there is no regulatory authority is incorrect,” the high court said.

It also observed that directing the appointment of a regulatory authority would result in legislation by this court which is not permissible. “The concept of separation of powers between legislature, judiciary and executive has been laid down in various judgments by the apex court. Courts cannot mandate a statute or add provisions to a statute as it would amount to legislation which is not permissible in the constitutional scheme of this country,” the high court said.

Dismissing the plea, the high court referred to a 2021 judgment of the Supreme Court in John Paily v. The State of Kerala, where the apex court held that courts do not possess the power to set up an adjudicatory committee or a tribunal by way of issuing a writ of mandamus. The high court said that the judiciary’s role is primarily to test the legality of a statute and not to amend or modify it. “Setting up of tribunals, authorities, regulators come purely within the domain of legislature and not in the domain of courts. In view of the above, there is no merit in the instant writ petition,” the high court said.