The fleeting public reappearance of the Broadcast Services Regulation Bill (BSRB) and its subsequent relegation to a legislative limbo, is consistent with the Central Government’s record of continually failing the test of creatively managing the airwaves as a public resource.
In comparison to its immediate predecessor -- the 2006 bill with an identical name -- the 2007 visitation of the BSRB shows some inclination to accommodate reservations about the Government’s obduracy in holding on to its formal powers of control. A concession to autonomy has been made in the 2007 draft by ceding the power of appointing the broadcast regulatory authority to a supposedly non-partisan committee comprising the Chairman of the Rajya Sabha, the Speaker of the Lok Sabha and the Leader of the Opposition in the Lok Sabha.
The delicate political balance within this collegium though, is perhaps upset by the norm that a quorum of two would be sufficient to effect all appointments if the last named post is vacant. And if the committee fails to arrive at a consensus within thirty days of the Central Government putting up its nominations, the matter would go to the President of India for a decision.
Inevitably, initiatives in broadcast regulation will be assessed against the background of various proposals tabled since the mid-1990s. The norms on appointment of a broadcast regulator at once bring to mind the provisions governing the choice of the board of the public broadcast trust, Prasar Bharati. Precisely such a non-partisan framework of decision-making was enshrined in the Prasar Bharati Act, notified in 1997. But in practice, the process has degenerated into blatant political and bureaucratic cronyism.
In consequence, Prasar Bharati, which was already floundering in the face of the challenge from the new generation of cable and satellite broadcasters, has now been quite decisively banished to the distant margins of the broadcast sector.
That apart, the Government succeeds, in the following clauses of the BSRB, in clawing back much of the power yielded to an autonomous regulator. For instance, the broadcast regulator would be obliged to choose its “secretary”, who would be its chief executive officer, from a panel of names that would be put before it by the Central Government. The qualifications specified for this post clearly suggest that the nominees would be drawn from the bureaucracy. And the same process would be followed by the authority in its appointment of chief executives to the various regional regulatory bodies envisaged under the BSRB.
Any residual suggestion of autonomy is extinguished by the provision that the broadcast regulator would have to adhere to “policy guidelines” issued by the Central Government in the performance of its tasks, which would include the registration of broadcasters, allocation of frequencies, and the governance of content. The identification of public service broadcasters whose signals would by law, have to be carried by all cable networks, was within the province of the regulator under the 2006 bill. The current version brings it under the jurisdiction of the Central Government, despite an entire chapter being added on the powers of a putative “public service broadcasting council”.
These apart, the BSRB 2007 reserves a large area of discretionary authority for the Central Government to intervene in broadcast content on grounds of “external threat or war involving India” or other “exceptional circumstances”. These eventualities, which are already inscribed into article 19 of the Constitution, could include public order, friendly relations with a foreign country, or internal security.
Where the functioning of the media is concerned, these constitutional restrictions have never, except during the Emergency regime, been used to justify prior restraint of the right to free speech. The BSRB formally introduces the possibility of prior restraint into the debate on free speech. This in turn, could well mean a significant abridgment in the public right to information, since free speech and the right to know, as interpreted by the Supreme Court, are closely intertwined principles.
While invoking the 1995 Supreme Court judgment on the airwaves being a public resource, the BSRB 2007 seeks little else than to extend the bureaucracy and vest it with formal powers that have long ceased to have any constructive purpose. The powers of search and seizure though, stand undiluted in relation to the 2006 draft. Whatever its ultimate fate, the BSRB 2007 perhaps, suggests nothing so much as bureaucracy’s ingrained resistance to change and its talent for confusing the public interest with the perpetuation of its own powers.