Pemra’s appeal against TV channel dismissed: Opinion of Council of Complaints needed before deciding a matter: SC

ISLAMABAD: The Supreme Court has said if the power of the Pakistan Electronic Media Regulatory Authority (Pemra) under clause (b) of Section 27 is to be exercised in respect of “any aspects” of a programme or advertisement, it must be exercised after obtaining and considering the opinion of the Council of Complaints.

A two-judge bench comprising Justice Syed Mansoor Ali Shah and Justice Ayesha A Malik dismissed the Pemra’s appeal against ARY Digital drama serial, JALAN.

The judgment said that the media content has to be first viewed by the Council of Complaints, an independent public regulatory body and after obtaining its opinion, the PEMRA, the government regulatory body, is to consider the opinion of the Council of Complaints and finally decide the matter.

M/s ARY Communications Private Limited broadcasted a drama serial, JALAN, on its TV Channel, ARY Digital. Some persons from the general public made complaints on the Pakistan Citizen’s Portal of the Prime Minister’s Performance Delivery Unit, alleging that the story of the drama serial is immoral and against social and cultural values.

The said complaints were forwarded to the chairman PEMRA for appropriate action. The PEMRA, acting through its delegate i.e. the chairman, called for the comments of ARY, which were submitted by ARY, refuting the allegations.

The PEMRA, however, being dissatisfied with the comments, first issued two directives to ARY to amend the script of the drama serial before broadcasting further episodes and then passed an order on 10 September 2020 under Section 27(a) of the PEMRA Ordinance, prohibiting the broadcasting and rebroadcasting of the drama serial.

ARY filed an appeal against the said order before the Sindh High Court (SHC) under Section 30A of the PEMRA Ordinance, which on 11-11-2020 set aside the prohibition order. PEMRA then approached the Supreme Court against the SHC.

“We are of the considered opinion that Section 27(a) of the PEMRA Ordinance is not an independent and self-governing provision; it rather requires for its applicability the opinion of a Council of Complaints regarding the objectionable aspect of a programme or advertisement in terms of Section 26(2) of the PEMRA Ordinance read with the Councils of Complaints Rules,” said the judgment.

It stated that the expressions “obscene”, “vulgar” and “offensive to the commonly accepted standards of decency” as used in Section 27(a) of the PEMRA Ordinance, are actually interconnected. 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 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. Further, 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 broadcasted on 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.

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. If the ultimate message of the play or drama under review passes the test of being not offensive to the commonly accepted standards of decency, the review of a particular part thereof which depiction is necessary to convey the message effectively must be lenient and tolerant.

However, where the obscenity of such 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.

Copyright Business Recorder, 2023