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Bans, damned curbs and advisories!

Namit Saxena, Dec 24 2017, 0:31 IST

We live in strange times when the government is full of ban aficionados. Be it dietary tastes (beef ban), drinking tastes (liquor ban), ban on a channel (NDTV ban) and now on advertising condoms on TV; there is a ban plan for everything. The Ministry of Information & Broadcasting recently issued an advisory prohibiting telecast of condom advertisements between 6 am and 10 pm. The expression 'advisory' is a misnomer as it ends by notifying -– 'Any failure will attract action as per provisions of the Rules', thereby making it penal in nature. It goes on to hold that condom advertisements are for a particular age group and 'could be' indecent/inappropriate for viewing by children. Let us make an endeavour and test the validity of this ban on four independent propositions “ historical, legal/constitutional, moral and scientific.

India is the land of Kamasutra. In no other civilisation does one find such depth in the study of the physical act of love. Fielding invasions from different parts of the world and yet surviving with its distinct identity, India took its modern form. What this modern India lost, however, was open mindedness about the same physical act of love that their ancestors wrote fondly on. Though condoms trace their origin to the 1850s with the introduction to male involvement in family planning, modern India accepted it only much later, and not without strong initial reluctance.

Being the second most populated country in the world, one can very well imagine how slow the adoption of condoms has been. During the Emergency in 1975-77, Sanjay Gandhi came up with the bizarre idea of forceful sterilisation. That flopped, and the population kept rising. The devil of AIDS and other STDs (sexually-transmitted diseases) arrived at our doorstep due to rampant unprotected sex.

Successive governments attempted to increase awareness about reproduction control tools. Arguably, the best contraceptive choice still is the condom. The current advisory therefore is a diametrically opposite step and undoes decades of progress in promoting the use of condoms.

Legally speaking, the advisory is untenable as it exceeds the scope, spirit and true purport of Rules 7(7) and 7(8) of the Cable Television Networks Rules, 1994. Rule 7(7) debars an advertisement that endangers the safety of children or creates in them any interest in unhealthy practices or shows them begging or in an undignified or indecent manner. Rule 7(8) is an avoidance clause stating that indecent, vulgar, suggestive, repulsive or offensive themes or treatment shall be avoided in all advertisements. Both these rules are for entirely different purposes and do not support the condom ads advisory. Constitutionally speaking, the advisory is violative of Article 19(1)(a) of a citizen to watch a particular advertisement selling a particular commodity; violative of Article 19(1)(g) of citizens ranging from a chemist selling condoms to a TV channel owner telecasting an advertisement to the owner of a corporate house manufacturing condoms; violative of Article 14 for being manifestly arbitrary and violative of a Directive Principle of State Policy under Article 47 for indirectly disturbing reproductive health of citizens.

On a moral plane, the advisory fails even more miserably. There is an identifiable pattern in the current ruling establishment's actions to push down the throats of citizens a particular ideology – one inspired by the ruling establishment's ideological founthead. This ideology is rigid. It assumes that a few select traditions (read, brahminical injunctions) constitute the only way of life. Every other way must be eliminated. One of the chief objectives of their propaganda is to reduce openness to anything related to sex. Be it sexual orientation or sexual preferences or wearing a particular set of clothes or now, as we speak, sharing information about safe sex methods with adolescents on television. There is absolutely no logic or statistical/figurative research behind issuing a mandate in the garb of an advisory. It is clear from the advisory itself that no prior research was conducted, given the expression 'could be'.

In any case, it is not for the government to pick and choose what the citizens could/should watch on television. If something of this nature bothers the government as being indecent, the censor board or the Advertising Standards Council of India should rule on particular advertisements, the merits of which can be independently adjudicated. The government must respect the freedom of the citizens watching television and leave it to their wisdom to change the channel or to watch it or to buy the product being advertised or not. A blanket ban on television, aimed at stopping the flow of information to a generation that's using Netflix and Hotstar, that too without any debate, is perverse. Even scientifically, condoms have proved to be efficient in not only birth control but also in curbing the spread of STDs.

It is high time that we overcame prejudiced mindsets, dogmatic advisories and self-perpetuating myths of a select few. The Rajasthan High Court has already issued notices on a public interest litigation challenging the I&B ministry's advisory, forcing the government to issue a clarification. Hopefully, the government will withdraw it completely before it is quashed, causing further embarrassment to it.

(The writer is a Supreme Court lawyer)

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