The Alternative Law Forum (ALF), made a presentation to the Secretary (Information and Broadcasting) on the Broadcasting Bill 2007. A report

The Ministry of Information and Broadcasting's latest attempt to regulate the broadcasting sector has drawn flak for a variety of reasons. The Ministry's Broadcasting Bill 2007, a draft of which has been published on its website attempts to tackle a wide variety of regulatory issues, this article will focus on the impact of the Bill on the right to freedom of speech and expression, and the public's right to information in the form of news reportage.

The Central Government's control over the broadcast media can be traced back to the Telegraph Act 1885, which gave it exclusive government monopoly over all broadcasting technology. The period of the Emergency saw strict control and use of both television and radio for partisan purposes. After the Emergency, Prime Minister Morarji Desai set up the Verghese Committee based on whose recommendations the government introduced a legislation to set up the Akash Bharati or National Broadcasting Trust. Its responsibilities included organizing public broadcasting and advising the government on broadcasting policy matters. It envisaged a board that would issue broadcasting licenses to private entities, and these would be able to transmit certain types of non-commercial programs and news.

The Bill was not enacted as the Janata government collapsed, and Indira Gandhi's Congress government tightened control over the broadcast media. In 1980, the Information and Broadcasting Ministry issued policy guidelines for the official media. In 1982, The Ministry issued a document titled News Policy for Broadcast Media that covers news selection and presentation, political coverage, coverage of the President, Prime Minister, and ministers, statements and rejoinders, strikes, riots and disturbances, sex and crime, national calamities, deaths and anniversaries, external news, subversion and insurgency, comments and opinions, speculation and rumor, and parliament coverage. Reflected in these are the concerns of national development and the maintenance of communal harmony and peace that can be traced back to the post-independence era.

After the assassination of Indira Gandhi, Rajiv Gandhi tried reforming the broadcast sector but abandoned these efforts as dissidence grew within the party and his own political problems grew. In 1989 the National Front government introduced a diluted version of the Akash Bharati Bill called the Prasar Bharati Bill. These dilutions included two conspicuous omissions - the clause promising to "uphold the fundamental right to freedom of speech and expression guaranteed by Article 19 (1) a of the Constitution and the clause pledging to ‘uphold the impartiality, integrity, and autonomy of broadcasting in India'. Parliament passed this Bill, but the government fell before it was notified. This Act went into cold storage for another 7 years till another Congress coalition decided to notify it in 1997.

With the advent of the first Gulf War, satellite television began to be beamed into India with private entrepreneurs quickly springing up in housing collectives offering cable connections linked to roof top dish antennae. In 1991, the Hong Kong based STAR TV began beaming channels into India via Asiasat-1. In October 1992, Zee TV began telecasting. In 1994, the government enacted the Cable Television Regulation Ordinance followed by a law, the Cable Network Act and Rules, which lay down a program code that had to be adhered to.

Besides the coming of satellite television, the main factor that resulted in the breaking of the government's monopoly over broadcast and radio was the Secretary, Ministry of Information and Broadcasting vs. Cricket Association of Bengal case. The case was a common decision for two separate disputes - one involved the BCCI's sale of telecast rights for the Hero Cup to Transworld International, which was then refused uplinking facilities by VSNL. The second involved a similar dispute resulting in the stymieing of ESPN's telecast of BCCI matches between October and December 2004.

In both disputes, the government claimed that it had complete control over spectrum and frequencies, and could decide how these could be allotted and used. The Court however ruled that airwaves constituted public property that must be utilized to further public good. It held that it was the duty of the state to ensure that the airwaves were utilized to advance free speech rights of citizens, which was served by ensuring plurality and diversity of views and opinions. This, the court held, could not be ensured by a medium controlled by a monopoly. It ruled that the broadcasting media should be under the control of the public as distinct from the Government. The court ordered the government to take immediate steps to establish an autonomous public authority.

In May 1997, the Ministry introduced a Broadcast Bill, which was the precursor to the 2007 Bill. It was meant to replace existing legislation at the time, and address issues related to an independent broadcasting regulator, cross media restrictions, new technologies like direct-to-home (DTH), and provide for community broadcasting.

In September 1997, Prasar Bharati was brought into existence with the notification of the Prasar Bharati Act. The government soon notified the amended Act to augment the autonomy granted to Akashvani and Doordarshan. In 2001, the government drafted a law called the Convergence Bill meant to replace the Telegraph Act, the Wireless Telegraphy Act, and the Telecom Regulatory Authority of India Act to form a single statutory framework for communications. This framework would have been anchored in an institution called the Communications Commission of India that would be responsible for licensing, regulating, and supervising communications. This Bill was referred to a Parliamentary Standing Committee, which gave detailed comments. However, the Bill was not tabled.

Broadcasting Bill 2007

Ten years after its first attempt to introduce a comprehensive Broadcasting Bill, the Ministry of Information and Broadcasting drafted a bill that has been the subject of much debate.

An important concern about the bill is the overarching and intrusive role that the Central Government has arrogated to itself. In line with the Supreme Court judgment, the Bill sets out the goal of establishing an ‘independent authority to be known as the Broadcast Regulatory Authority of India for the purpose of regulating and facilitating development of broadcasting services in India.'

There is no evidence, however, of any intention to set up an independent autonomous, professionally competent, regulatory organization in the broadcast sector. According to the provisions of this Bill, the regulator will be allegedly autonomous, but it is not clear what powers it will have. The Bill gives the Central Government, powers under an itemized list of 14 functions which cover what a regulator should be doing, that includes terms and conditions of licenses, power to prescribe license fees, policy and certification guidelines and so on.

The Bill gives far too overarching a role for the Central Government, from laying down policy, to nominating/selecting members of the BRAI, and the Public Service Broadcasting Council. The identity, as well as division of responsibility among the Central Government, the Broadcast Regulatory Authority of India (BRAI) is not clear.

It goes without saying that the broadcast sector is a key area in which the freedom of speech and of the press can be exercised, and any effort to control content on the broadcast media should be viewed suspiciously.

Of particular concern, are sections 5 and 6 of the Bill. Section 5 makes permits the Central Government, in times of war or ‘external threat' to direct a service provider to stop broadcasting its service or transmit in its broadcasting service such programs or announcements. Section 6 permits the Central Government to issue similar orders but in, the much broader, ‘exceptional circumstances'. Both these provisions allow the Central Government to effectively pre-censor television channels and as the experience of the Emergency shows us, any power of pre-censorship given to the Central Government will be misused. Provisions that allow for censorship, or provisions that allow the government to compel the media to stop publication or broadcast of programs or to compel the media to publish or broadcast of certain programs, has been misused and it we would be wise to learn from the past and actively resist such provisions in the law.

Moral concerns around indecency and obscenity

Along with the Bill, the Ministry published a draft Content Certification Rules (Content Code). The Bill's attempt at regulating the content of what is shown on television is reflective of tensions that have emerged ever since the entry of satellite television in the country. Mr. Arun Aggarwal, a practicing advocate filed a complaint before the learned Chief Metropolitan Magistrate (CMM) against Star TV, Star Movies and V Channels, naming close to 30 persons in the complaint. According to the complainant, obscene and vulgar TV films were shown and transmitted through various cable operators, amounted to obscenity and, therefore, the accused persons had committed offences under Sections 292/293/294 IPC and under Section 6 read with Section 7 of the Indecent Representation of Women (Prohibition) Act, 1986.

However, the Bill's effort to introduce ‘self-regulation' in the broadcast sector, through the provisions of the Content Code contain a number of vague terms that can be easily used to restrict freedom of expression on flimsy grounds especially in these days of rampant moral policing and the growing tendency of various sections of the audience to be shocked and offended. The Content Code creates several categories by which programs are supposed to be classified as ‘U', ‘U/A', ‘A' and ‘S'. Channels are supposed to classify their programs based on guidelines contained in the Code. Often laborious and tortured, these guidelines are extremely subjective and may provide flimsy grounds upon which content may be censored.

Regulation of News

The Content Code provides guidelines for news channels as well. According to the Code, News channels must base their selection and presentation of news, based on ‘good taste' and the news that is presented must not only refrain from jeopardizing the security of the nation, but must also be in the national interest. However, a free news media is essential in a democracy and the value of the news media lies in its independence and its ability to contribute to a healthy political debate.

The Bill attempts to regulate sting operations by proposing that news channels should be able to demonstrate why in the particular circumstances of the case, an infringement of privacy is warranted. Critics of the media's use of sting operations have said that the Ministry's proposal is validated by the fracas over the Uma Khurana ‘sting operation'. On 30 August 2007, ‘Live India' a Television News Channel aired a ‘sting operation' showing Khurana, a Delhi government school teacher allegedly forcing a female student into prostitution. Subsequent to the telecast, a crowd gathered at the school gate and started raising slogans demanding handing over of Khurana to them. In the commotion and mayhem that followed some persons physically attacked Khurana and even tore her clothes. Shocked by the aforesaid incident and consequent to public outcry the Directorate of Education, Government of Delhi first suspended Khurana and later dismissed her from service.

An investigation into the incident by the Delhi police showed that the girl who had been shown as a student who was allegedly being forced into prostitution by Khurana was neither a school girl nor a prostitute but a budding journalist eager to make a name for herself. The police found no evidence to show that Khurana was involved in a prostitution racket.

The Delhi High Court, in an attempt to examine why how such a situation can be avoided in the future, took suo moto notice of media reports on this incident, and ordered the Ministry of Information and Broadcasting to examine guidelines to regulate the broadcasting of sting operations. A controversial part of these guidelines was the proposal that every channel has to obtain permission from a three member-committee appointed by the Ministry of Information and Broadcasting before telecasting the sting operation.

The Editors Guild of India has already opposed the Delhi High Court's suggestion that the Information & Broadcasting Ministry consider setting up a three-member government committee to pre-censor sting operation programs of TV channels. In a statement, the Guild said: ‘If implemented, this suggestion of the Court would introduce a draconian, judicially-backed Emergency by the back door and would trample the fundamental rights guaranteed under the Constitution.'

While undoubtedly, stings by news channels have been problematic, there is a certain value in the freedom of speech, and there is a public interest in the broadcast of information. Instead of protecting free speech and seeking justifications for the restriction of this right, the Bill proceeds on the logic that freedom of speech is dangerous and should be only exercised when ‘warranted'.

The Bill, unfortunately, does not really address cross-media ownership issues, which generally aim to ensure that media companies cannot establish monopolies or achieve market dominance across various forms of media - e.g., print/newspapers, radio and television. The provisions of the Bill seem to focus exclusively on monopoly/dominance within the broadcast sector, particularly vis-à-vis content providers and network service providers. It is not even clear whether these restrictions apply across television and radio - ‘channels' are mentioned without identifying them further.

Conclusion

The last few years has seen increasing tensions around moral concerns around the content of programs being broadcast on television and the right of those viewing the channels, and between the ethical responsibilities of the broadcast media and their right to freedom of speech and expression. This period has also seen a rapidly changing media environment, in which the government and the judiciary are struggling to keep pace with changing media technology and the reach of the media.

While the Broadcasting Bill 2007 attempts to tackle issues that have emerged in this period, it is obvious from the contents of the Bill that it has not done enough to balance concerns on the restriction of the right to freedom of speech and expression and concerns over excessive being given to the Central Government. The Government needs to institute a more consultative process, ensuring that the provisions of the draft bill is circulated widely and should ensure that it takes seriously comments it has already received. The way forward is to consider seriously the option of instituting mechanisms for self-regulation seriously. The last thing Indian audiences need is to go back to Big Brother deciding what they should be watching.