1. Despite court stay, OTT platforms face pressure on content

OTT, or over-the-top, streaming services such as Netflix and Amazon Prime Video are facing pressure to comply with the Information Technology Rules, 2021, and to exercise further restraint in streaming mature content. This is despite the fact that two High Courts have stayed provisions of the IT Rules, which require them to appoint a grievance officer and take down content when ordered to do so by a self-regulatory body.

Two advisories

The Ministry of Information & Broadcasting (I&B) has issued two advisories on the issue: the first, in February 2022, told the platforms to ensure that a grievance officer’s details are made publicly available on their websites.

The second advisory, issued on March 24 this year, warned streaming platforms to exercise “abundant precaution in ensuring that films and web-series… do not fall [a]foul of the… Code of Ethics” that is laid out in the IT Rules.

“Given that the Code of Ethics under Rule 9(1) of the IT Rules, 2021 has been stayed by the Bombay and Madras High Courts, OTT platforms are not bound by the terms thereof,” the Internet Freedom Foundation said in a statement to The Hindu.

Beyond the government advisories, a self-regulatory body that includes Netflix, Amazon Prime Video and ALTBalaji as members, issued its own internal advisory to streaming firms. The fact that some sites do not have grievance officers or monthly reports of grievances posted on their website does “not appear to be in strict conformity with the law”, Justice (Retd.) A.K. Sikri, chairperson of the Digital Publisher Content Grievances Council’s Grievance Redressal Board, said in an advisory to streaming platforms on April 10.

I&B Minister Anurag Thakur recently warned streaming services, which have largely stopped releasing mainstream series and shows with politically or religiously sensitive themes, that they should not make content that offends Indian cultural sensibilities. The Ministry did not respond to The Hindu’s queries on the legal aspects of its advisories after the High Court stays.

As recently as Wednesday, Mr. Thakur said at an event, “There are multiple complaints about the kind of content that should not be on TV, that is shown on OTT.”

This comes even though the redressal board received zero appeals on content complaints in February and March, and just one complaint each in the two months before that, according to disclosures on their website.

2. SC modifies order on ESZ around protected forests

The court said that the purpose of declaring ESZs is not to hamper the day-to-day activities of the citizens.

It reasoned that ESZ cannot be uniform across country and has to be ‘protected area-specific’; last year, court had ordered the one-km buffer zone for protected areas to act as a shock absorber

The Supreme Court on Wednesday, modified its judgment to have mandatory eco-sensitive zones (ESZ) of a minimum one kilometre around protected forests, national parks and wildlife sanctuaries across the country.

A Bench led by Justice B.R. Gavai reasoned that ESZ cannot be uniform across the country and has to be “protected area-specific”. On June 3, 2022, the court had ordered the one-km buffer zone for protected areas to act as a “shock absorber”.

However, the Centre and several States, including Kerala, had returned to the court seeking modification of the June 2022 judgment, saying the judicial direction affected hundreds of villages on the peripheries of forests.

Agreeing, the court said “the purpose of declaring ESZs is not to hamper the day-to-day activities of the citizens. If the direction as issued is continued, it would certainly hamper the day-to-day activities of the citizens residing in ESZs. As such, we find that the direction needs to be modified”.

The court said a stringent observance of the June 2022 judgment would cause more harm than good. For one, man-animal conflict would only increase rather than abate.

However, the court made it clear that “mining within the national park and wildlife sanctuary and within an area of one kilometre from the boundary of such national park and wildlife sanctuary shall not be permissible”.

3. Fruits of labour

Wide array: Farmers displaying over 50 varieties of kharif seeds during the International Seed Day celebrations organised by the Deccan Development Society at Pastapur village in Zaheerabad mandal of Sangareddy district in Telangana on Wednesday. 

4. Mahanadi row: experts question timing of Chhattisgarh’s release of water into river

Odisha has long been objecting to Chhattisgarh’s management of Mahanadi river water in the upper catchment area.

A controversy has erupted over Chhattisgarh’s release of Mahanadi water into the lower catchment area of the river system. Water experts and political leadersin Odisha have accused the neighbouring State of attempting to mislead the Mahanadi Water Disputes Tribunal led by former Supreme Court Justice A.M. Khanwilkar

According to Water Resource Department of Odisha, Chhattisgarh has opened 20 gates at Kalma Barrage through which 1,000-1,500 cusecs of water is flowing into Mahanadi in Jharsuguda district – a rarity as Chhattisgarh hardly releases water during non-monsoon season.

Bhakta Ranjan Mohanty, Engineer-in-chief (water resource), said gates were opened keeping the scheduled visit of Justice Khanwilkar this week. He would take stock of water availability in command areas of Mahanadi in Odisha.

Odisha has long been objecting to Chhattisgarh’s management of Mahanadi river water in the upper catchment area. During the past couple of decades, Chhattisgarh has built several barrages restricting flow of water in the lower catchment (Odisha). The non-availability of water in Mahanadi during non-monsoon season has affected rabi crops and reduced drinking water availability.

Following a complaint filed by Odisha with the Ministry of Jal Shakti under Section 3 of the lnter-State River Water Disputes (ISRWD) Act, the Mahandi Water Disputes Tribunal was formed in March 2018. The tribunal has been asked to submit its report by December 2025.

State Planning Convergence Minister Rajendra Dholakia alleged that when Chhattisgarh faces floods in the upper catchment area during monsoon, it opens gates without any intimation to Odisha, but is reluctant to release water during non-monsoon season.

He said the tribunal would take note of Chhattisgarh’s attempt to deceive it.

Water experts in Odisha, however, said it would not be easy on the part of Chhattisgarh to misrepresent actual position in Mahanadi system as there was enough documentary evidence to show the water was completely managed by Chhattisgarh on its side.

5. Right to marry is not absolute, laws regulate marriage, Centre tells SC

Solicitor-General says the social institution of marriage was shaped by world religions; he adds the legal recognition of same-sex marriage by making Special Marriage Act gender-neutral should be debated in Parliament, and not the court

The Centre on Wednesday argued in the Supreme Court that the right to marry is not an “absolute right” and petitioners cannot compel the state to grant legal status to same-sex marriage through a judicial declaration.

“The right to marry does not include the right to compel the state to include a new definition of marriage… the right to marry, even among heterosexuals, is not an absolute right,” Solicitor-General Tushar Mehta began the government’s response in the same-sex marriage case.

Mr. Mehta pointed out to a Constitution Bench led by Chief Justice D.Y. Chandrachud how several provisions across statutes regulate marriage.

‘Hold on privacy’

“Law prescribed that a man should marry at 21 years and a woman at 18… now, the law regulates your autonomy here. Bigamy is an offence… here, the law regulates the number of times you can marry. The law even lists the grounds for judicial separation and divorce. Impotence is a ground for divorce… this is a very personal issue. But if it is a ground, you have to spell it out in court for divorce… so, law has a hold on your privacy,” Mr. Mehta said.

He asked how the Supreme Court, in a judgment, would conceive the way all these provisions would apply to same-sex marriage.

“Let us see in the case of age of marriage… we do not know who should be 21 years and who should be 18 years… who is the man and who is the woman,” Mr. Mehta submitted.

Mr. Mehta said a mere judicial declaration recognising same-sex marriages would not be enough. The fallout of such a declaration would be too numerous, varied and complex for the court.

Varied views

The Solicitor-General said the legal recognition of same-sex marriage by making Special Marriage Act gender-neutral should ideally be debated in Parliament, and not the court.

“A debate in Parliament will be assisted by national views, views of experts, views on impact, effects and what are the implications on several laws… To my knowledge, there are at least 160 provisions which cannot be reconciled with a changed Special Marriage Act… No one is on value judgment here. We are just saying that Parliament has already accepted their right of choice, autonomy in terms of sexual preference and privacy in terms of the right to intimate relationship between consenting adults,” Mr. Mehta submitted.

He said the Transgender Persons (Protection of Rights) Act, 2019 was the Parliament’s response to decriminalisation of homosexuality by the Supreme Court in 2018. The term ‘transgender person’ in the statute is widely defined to include all spectrums of the LGBTQIA+ community.

He asked the court what the ‘+’ encompassed in the ‘LGBTQIA+’ community.

“We do not know what the ‘+’ means… There are 72 shades or spectrum or variations… How will you [the court] regulate these varieties of situations… There is ‘null gender’ and ‘fluid gender’… Even for Parliament, it would be a humongous exercise, leave alone for a judgment,” Mr. Mehta said. He told the court that “the class you are dealing with is an unidentifiable class”.

Mr. Mehta said the social institution of marriage was shaped by world religions.

Religious conformity

“All religions converge, and do not contradict, in their opinion that marriage is at the heart of the foundation of family and society. They believe that children from the marriage are sacred gifts of the marriage… What is recognised as marriage is a heterosexual union,” he said.

Mr. Mehta said the lawmakers had “consciously omitted” LGBTQIA+ community from the purview of the Special Marriage Act. “What was not intended by lawmakers cannot be added into the Act,” he argued.

The law officer said the court should not become a “super-legislature”. “Though the finest intellects may reflect on this here, they still will not make the will of the people,” the government contended.

6. Centre tells States to scrap levies on power generation

Power Ministry in a communique warns States to rescind any ‘unconstitutional’ imposts, including water cess, that they may have levied on power generating units; says such levies tax non-residents

The Centre on Wednesday issued a terse warning to States against resorting to tax levies on electricity generation, including through imposition of a water cess, noting that there were no provisions in the Constitution that enabled States to do so.

In a communique to States’ chief secretaries, approved by Union Minister for Power and New and Renewable Energy R. K. Singh, the government said some States had imposed taxes or duties on generation of electricity and underlined that this was ‘illegal as well as unconstitutional’.

“Any tax/duty on generation of electricity, which encompasses all types of generation… is illegal and unconstitutional,” the Power Ministry said.

“Some States have imposed taxes/duties… under the guise of levying a cess on the use of water for generating electricity. However, though the State may call it a water cess, it is actually a tax on the generation of electricity – the tax is to be collected from the consumers of electricity who may happen to be residents in other States,” the Ministry pointed out.

7. Promising Bill

Rajasthan’s initiative on a gig workers’ welfare board heralds good tidings

With an estimated eight million people employed in an industry built on the back of the smartphone revolution, “gig” work has become a major source of jobs for youth in India. It goes without saying that in a country where informal labour and unemployment have defined the nature of the jobs market in the last decade, the gig economy has been a beneficial outlet of employment. This is especially true of youth and migrant workers, as they seek a ready and quick means of securing finances and flexible hours — an option used by informal workers who have used gigs for moonlighting. With growing smartphone use and a reliance on apps for daily needs and purposes, the gig economy is only set to flourish in terms of usage and opportunities. Yet, increased competition among platforms and the availability of a cheap labour force have led to a lowering of incentives for gig workers even as their workload and uncertainty of work hours have increased significantly relative to pay, which has also become insufficient for many. Adding this to the fact that gig workers are not recognised as “workers” but partners by most aggregating platforms and that they lack any social security or related benefits due to them as “workers”, working conditions have become increasingly harsh in an industry that is no longer a fledgling one. This is now evident in growing flash strikes by gig workers.

Seen in this light, the decision by the Rajasthan government, to deliver a Rajasthan Platform-based Gig Workers (Registration and Welfare) Bill, 2023, should be welcomed, even if it will be introduced before the Assembly elections later this year. While the draft Bill envisages a “welfare board” that will design welfare policies and hear grievances of gig workers on a piece rate basis, the specificities of the policies and how they might benefit the workers are still un clear. The board is expected to work towards a social welfare corpus which will be financed by a cess on the digital transactions made by consumers on the platforms that utilise the gig worker labour. This schema is not unfamiliar — platform workers in the transport sector in Thailand and Malaysia, for instance, benefit from health and accident insurance as well as social security that is financed by a deduction of 2% for every ride. Recently, the Union government passed the Code on Social Security (one of four labour codes), which also allowed for some social security for gig workers, but the scheme only remains on paper without proper implementation. If Rajasthan’s pioneering draft Bill takes off, other States could be compelled to utilise similar measures to ensure the welfare of gig workers.