Question: Government intent in banning condom advertisements during prime time television, might be laudable, the manner in which it has been drafted is likely to have a drastic and chilling effect.’ Comment and elaborate the intentions behind the government action.
Government Action: On December 11, 2017 the Ministry of Information and Broadcasting issued an advisory to television channels banning all “advertisements of condoms which… could be indecent/inappropriate for viewing by children” between 6 a.m. and 10 p.m. The advisory was issued because it came to the notice of the Ministry that “some channels” were carrying “advertisements of condoms repeatedly which are alleged to be indecent especially for children.” It was later reportedly clarified that the advisory only applied to “sexually explicit” advertisements meant to “titillate” the audience. While the intent might be laudable, the manner in which it has been drafted is likely to have a drastic and chilling effect on all condom advertisements (not merely “vulgar” ones) during prime time television viewing hours, when such advertisements ought to be shown in the public interest.
Good intent: One must applaud the government’s decision to grant a safe harbour to advertisements which it considers “indecent”, instead of banning them altogether. After all, the Ministry could have paternalistically directed all channels not to disseminate any indecent condom advertisements whatsoever, no matter the time of the day or night at which they were shown. By allowing “indecent” condom advertisements to be disseminated between 10 p.m. and 6 a.m., the government has empowered parents to decide what their children can and cannot watch, while ensuring that adults are not deprived of content which they are entitled to view. The idea behind this type of regulation is that when it is late in the evening, parents are likely to be at home when they can better supervise their children. The ban imposed by the Ministry is also tolerable because it has been inflicted on advertisements, or “commercial speech” which, in constitutional law, is often considered to be a form of “low value” speech. Further, the government has not banned all condom advertisements, but only those which are indecent.
Drafting manner was flawed: However, the manner in which the advisory has been drafted is far too broad. The Ministry has advised channels to ban all condom advertisements which “could be indecent/inappropriate for viewing by children”. But how does one decide whether something “could” possibly be “indecent, inappropriate”, “sexually explicit” or “titillating”? In a famous case decided by the U.S. Supreme Court, Justice Potter Stewart once said that while it is difficult to define the meaning of hardcore pornography, “I know it when I see it.” The distinction between art and obscenity is often paper thin and incredibly subjective. As Justice J.M. Harlan wrote in another case, “one man’s vulgarity is another’s lyric.” When different people see the same condom advertisement, many may disagree over whether it is “indecent”. Some may find it funny or informative, while others may consider it obscene or distasteful. The word “inappropriate” used in the Ministry’s advisory is even more vague than the word “indecent”.
Mistakes made by the ministry: The Ministry has also made the fatal mistake of bracketing all “children” into the same conceptual category. What is suitable for viewing by a 17-year-old boy may not be appropriate for a three-year-old girl, and both may be considered “children”. It may have been a better idea for the government to have prohibited “indecent” condom advertisements during programmes that are likely to be viewed by young children such as cricket matches or cartoons. The advisory seeks refuge in a provision in the Cable Television Network Rules, 1994, which bars any advertisement that “endangers the safety of children or creates in them any interest in unhealthy practices”. But can it really be considered an “unhealthy practice” for a sexually active 17-year-old to have safe sex? Whether we like it or not, some teenagers below the age of adulthood may engage in sexual relations. Further, it is human nature which is responsible for our sexual impulse, not condom advertisements.
Relevance of advisory in digital India time: One also wonders what place an advisory of this kind has in today’s digital India. Television programmes shown even in the early hours of the morning can now be recorded on a digital video recorder and watched at three in the afternoon. Pornography is freely available on the Internet. Do we really need to shield the teenager, who knows how to illegally download the popular HBO series, “Game of Thrones” (which has nudity and extreme violence), from comparatively tame condom advertisements? Newspapers which carry graphic columns by “sex experts”, columns which offer advice to couples with sexual problems, are available for all and sundry to read. One also wonders where the government’s priorities lie. The government believes that condom advertisements are “unhealthy” for children, but not advertisements which encourage them to consume fizzy drinks laden with high-fructose corn syrup, or junk food, low in nutritional value, all of which may have an adverse effect on the public health system. The government also has no qualms about advertisements which sexually objectify men instead of women.
Given how difficult it is to interpret words such as “indecent” and “titillating”, and in order to make their content suitable for viewing by children of all ages, an Indian television channel may now justifiably think twice before airing any condom advertisement, whether “inappropriate” or otherwise, between 6 a.m. and 10 p.m., as it is always better to err on the side of caution. This “chilling effect” on condom advertisements will be detrimental to the public interest. It will mean that sexually active Indians may not be exposed to condom advertisements during prime time viewing hours, when such advertisements could have been seen by the highest number of people. Though offended by indecency and innuendo, the government must not forget that condoms can help prevent unplanned pregnancies and restrict the spread of sexually transmitted (sometimes life-threatening) diseases. (Source: The Hindu)
