• Pemra restrained from acting against media houses without opinion from council of complaints
• Bench upholds right to ‘offend, shock or disturb’, terms decency a standard of ‘tolerance, not taste’
• Says social mores and sensibilities change over time

KARACHI: In a landmark judgement describing ‘obscene’ and ‘vulgar’ material as something that is “offensive to the commonly accepted standards of decency”, the Supreme Court on Wednesday held that the fundamental rights of freedom of expression and right to information apply not only to ideas that are favourably received, but also to those which offend, shock or disturb the state or any other sector of the population.

The order came on a petition filed by the Pakistan Electronic Media Regulatory Authority (Pemra) against ARY Communications Pvt Ltd, appealing a Sindh High Court order that struck down the watchdog’s punitive measures against the channel over the broadcast of the drama serial ‘Jalan’.

The top court, declining the watchdog’s petition for leave to appeal the high court ruling, said that Pemra could only take action after a review of the objectionable aspect of the drama serial in question had been referred to the council of complaints.

A two-judge bench consisting of Justice Syed Mansoor Ali Shah and Justice Ayesha A. Malik had taken up the case of the serial, which had elicited complaints from citizens who thought the show was immoral and against cultural values, and Pemra had passed an order in Sept 2020, prohibiting the serial from being broadcast.

The channel then approached the Sindh High Court, objecting to Pemra’s jurisdiction to issue show cause notices without obtaining the opinion of the council of complaints, under Section 26 of the Pemra ordinance. The high court had allowed the appeal, and Pemra then approached the apex court.

In their order, the two SC judges noted that Pemra was bound to obtain the opinion of a council of complaints regarding the objectionable aspect of a programme and could not have bypassed this step.

Noting that there was no bar on Pemra to take notice, either suo motu or on information received, of any alleged contravention of its rules, the judgement pointed out that the law called for such matters to be referred to a council of complaints that would review the same and render its opinion, as per Section 26 of the Pemra Ordinance. After considering the said opinion, Pemra or its chairman can take a final decision, the judgement noted.

Under Section 26 of the Pemra Ordinance, the federal government is bound to establish councils of complaints at Islamabad, the provincial capitals and other places, which should consist of a chairperson and five members “being citizens of eminence from the general public at least two of whom shall be women”.

What is considered obscene or vulgar?

The fundamental point that needs to be noted, the judgement said, is that the exhibition of any kind of works of art and literature is a part of the fundamental right to freedom of expression guaranteed by Article 19 of the Constitution.

The judgement noted that only that form of an expression can be said to be “obscene” or “vulgar” which is “offensive to the commonly accepted standards of decency”. Thus, the “commonly accepted standards of decency” in the community is the benchmark to determine whether or not a particular form of the expression of one’s thought, idea or opinion in a play or drama is “obscene” or “vulgar”.

The important thing to understand, the judgement noted, is that the commonly accepted standard of decency in a community is a “standard of tolerance, not taste”.

It is not what the people generally think is right for them to see but what they would not tolerate others being exposed to it on the basis of the degree of harm to “public decency” or “public morality” that may flow from such exposure, the order noted.

Further, the judgement noted, the expression “commonly accepted standards of decency” must be understood to be the contemporary standards as the social mores and sensibilities change over time.

A work of art and literature, which includes a play or drama broadcast on the electronic media, is usually considered a strong and effective medium to break the silence on social taboos; therefore, it is not to be labelled as “obscene” or “vulgar” readily without appraising the message it intends to convey, the order said.

In this perspective, one would need to see whether that message tends to promote or glorify the conduct or behavior which is offensive to the commonly accepted standards of decency, or it tends to condemn or deprecate such conduct or behavior.

Such a review is to be undertaken on an objective assessment of the play or drama as a whole, not on the basis of pick and choose of its parts from here and there, the judges stressed.

The bench, however, ruled that where the obscenity of such a part is too pronounced to eschew, only the objectionable part should be prohibited from being broadcasted and directed to be suitably modified, and the broadcast or rebroadcast of the complete play or drama must not be prohibited.

Published in Dawn, April 13th, 2023